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10. A IT' a 

^ • — -i 

A COMMENTARY ON 

THE NEW 

CODE OF CANON LAW 



" • t 

By THE REV. P. CHAS. AUGUSTINE^O.S.B., D.D. 

Professor of Carton Laiv 



■ 



Volume I 
Introduction and General Rules (can. 1-86) 



SECOND EDITION 



B. HERDER BOOK CO. 



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TO 
THE BELOVED HIERARCH OF OUR DIOCESE 

THE RT. REV. MAURICE FRANCIS BURKE, D.D. 

BISHOP OF ST JOSEPH, MO. 
THIS VOLUME IS RESPECTFULLY DEDICATED 



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FOREWORD 



Aug. 7th, 1917, the S. Congregation on Seminaries and 
Studies issued a decree which imposes on teachers of 
Canon Law the task of explaining the new Code, not 
only synthetically, but also analytically, by closely fol- 
lowing the order and text of the Code itself. The de- 
cree also calls for a historical survey, whenever neces- 
sary and opportune, of the respective canons. This pre- 
cisely has been the guiding line along which the writer 
taught Canon Law at the Benedictine University in Rome 
for nine years (1906-1915), until the European conflict 
closed our international College. Most of that time, 
therefore, fell within the period of the present codifica- 
tion. 

We do not intend to make an apology for the commen- 
tary now offered to the clergy and all interested in the 
study of ecclesiastic law. The commentary shall be 
as brief as the matter permits and shall not be encum- 
bered with moralizing reflections. The reader should 
remember that the commentary is intended for countries 
where the English language prevails, and hence for such 
countries as do not reflect all the customs and laws in 
vogue and practice elsewhere. Wherefore certain parts 
of the Code (e. g., cathedral chapters, jus patronatus, 
benefices) will not be treated in extenso. We shall en- 
deavor to render the text in a verbal, or at least sub- 
stantially faithful, transcription, no official English text 
having reached us. For the rest, the old saw, " Bis dat 
qui cito dat," has quickened this edition. 

The Author. 

Conception, Mo. 



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TABLE OF CONTENTS 

PAGE 

FOREWORD i 

PART I. INTRODUCTION x 

Ch. I. Name and Definition of Law in General and 

Canon Law in Particular x 

Ch. II. The Science of Canon Law and Its Impor- 
tance 6 

a 

Ch. III. The Sources of Canon Law 9 

Sect. i. The " Fontes Essendi " 10 

Sect. 2. The " Fontes Cognoscendi " 12 

Art. i. Holy Writ 12 

Art. 2. Decrees of the Roman Pontiffs 13 

Art. 3. The Canons of Councils 16 

Art. 4. The Unwritten Law 17 

Ch. IV. History of the Sources and Literature op 

Canon Law 18 

Sect. i. First Period (to about 1150) 20 

Art. 1. Occidental Collections 21 

Art. 2. Spurious Collections of the Ninth Century . 23 

The Pseudo-Isidorian Decretals 24 

Art. 3. Collections of the Tenth and Eleventh Cen- 
turies 27 

a 

Sect. 2. Second Period (to the Council of Trent) . . 30 

Art. 1. The Decretum Magistri Gratiani .... 30 

Art. 2. Decretales Gregorii IX (1234) 36 

Art. 3. Decretales Bonifacii VIII (1208) .... .38 

Art. 4. Clementinae (1317) 40 

Art. 5. Extravagantes 42 

Art. 6. The "Corpus Juris Canon ici " 43 

Sect. 3. Sources of the Last Period 46 

Study of Canon Law 49 

Sect. 4. The Glossators 52 



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CONTENTS 

PAGE 

Sect. 5. Post-Tridentine Literature 56 

1. Historico Critical Writings 57 

2. Commentaries -57 

3. Manuals 58 

Ch. V. Old and New Law .60 



CONSTITUTION " PROVIDENTISSIMA" OF BENE- 
DICT XV, PROMULGATING THE NEW CODE . . 64 

PROFESSION OF FAITH PRESCRIBED BY THE NEW 

CODE 69 

PART n. COMMENTARY 72 

Book I. General Rules 72 

Title I. On Ecclesiastical Laws 80 

Definition and Nature 80 

Legislators of the Church 82 

Obligation of Laws 83 

Interpretation of Laws <M 

Cessation of Laws 10a 

Title II. On Custom 106 

Abolition of Customs 1x3 

Title III. Ox the Reckoning of Time 115 

Title IV. On Rescripts 124 

Date and Requisites 127 

The Clause "Motu Proprio" 133 

Mistakes in Rescripts 135 

Preference, Interpretation, and Presentation .... 136 

The Office of Executor 141 

Recall and Cessation of Rescripts 148 

Title V. On Privileges 152 

Historical Note 152 

Division of Privileges 153 

Acquisition of Privileges 154 

Faculties 159 

Interpretation of Privileges 162 

Loss of Privileges 164 

Titli VI. On Dispensations 173 



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THE NEW CODE OF 
CANON LAW 

PART I 
INTRODUCTION 

CHAPTER I 

NAME AND DEFINITION OF LAW IN GENERAL AND CANON 

LAW IN PARTICULAR 



The Latin word jus ( from jurare, to swear, or jussum, 
command) has a double meaning or sense: a) subjec- 
tively, it signifies right, or " the moral power to have, 
to do, or to require something from another (facultas 
tnoralis inviolabilis aliquid habendi, agendi, extgendi), as 
we say to give to every one his due ( suum cuique) ; b) in 
the objective sense, jus denotes norm or law either in the 
singular or plural (complex of laws), for instance, the 
law of celibacy, civil law. canon law. This latter mean- 
ing is attached to the "eternal law," since "the very idea 
of government of things in God the Ruler of the universe 
has the nature of a law/' l and every law, divine or 
human, is but an irradiance from the eternal law, as all 
human laws bear the character of laws only in as far as 
they approach, more or less, this prototype. 

Canon Law (jus canonicum, derived from the Greek 
Ktiwv, i. e. norm or rule), as a technical term occurs since 

l S. Thtol, I-n, q. 9U »■ i * 



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2 INTRODUCTION 

St 

the twelfth century, 1 this nomenclature being exclusively 
reserved for the laws of the Church, whilst lex (yapo?) 
was applied to civil laws. Consequently the interpreters 
of ecclesiastical law were called canonistae, those of civil 
law, legistae. 

Definition. — Canon Law may therefore be denned as 
" the complex of rules which direcl the exterior order of 
the Church to its proper end." 

Explanation. — a) In this definition the laws of the 
entire Church only are, per se, considered, viz, those 
laws which touch upon the whole body as such and em- 
anate from the supreme authority (jus commune). 
Hence laws made for a particular portion of the Church 
or its members are outside our subject except in so 
far as they form part and parcel of the body of common 
law. However, since these particular or special rules 
need the explicit or implicit consent of the supreme law- 
giver, and rest on the interpretation of law in general, 
it is evident that even these particular laws must, to 
some extent at least, be taken into consideration. 

b) The purpose of Canon Law, as of all law prop- 
erly so called, is the establishment and maintenance 
of exterior order. The Church forms an organized 
body which has its special and proper functions. 
In a certain sense, she is a body politic with a working to 
the outside. Hence her laws, either in regard to the 
hierarchic ramifications, or in relation of member to 

a 

member, are concerned not directly with internal acts 
(" de internis non judicat praetor"), but with the public 
or exterior order of the Church at large (finis proximus 
juris canonici), 

c) However, the end of the Church being mainly 



2 5immo Stephani Tvrnactntis, apud Schulte, Gcsch. d. Quellm «. Lit. d. 

can. Rtchts, 1875, I, 29. 



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CANON LAW 3 

spiritual, I. e. t of the supernatural order, it is plain that 
Canon Law must partake of that order, and hence tend, 
a potiori, to a supernatural end. Yet, it is perfectly 
true what has been said above (b), that ecclesiastical 
laws are principally intended to maintain the public 
order, since the Church is not merely a supernatural and 
an invisible organization, but a visible body consisting of 
men, not of angels. 

Besides the time-honored nomenclature " Canon Law," 
i. e. M the law made up chiefly of canons, there are other 
names: a) jus ecclesiasticum, inasmuch as it embraces 
the whole range of Church legislation contained in the 
canons of councils as well as in the decrees and decretals 
of the popes and in unwritten laws, i. e., legitimate cus- 
toms; b) jus pontificium (a term used v. g. by Giraldi), 
in as far as the supreme and chief source of Church legis- 
lation is the Sovereign Pontiff; c) jus sacrum, in as far 
as its main author is Jesus Christ and it treats of sacred 
persons and things. 

Division of Canon Law. — a) By reason of its ori- 
gin, Canon Law is either divine or human. Divine is 
that part of it which owes its origin to Christ or the 
Apostles, in as far as the latter enacted laws by divine 
inspiration, (which is not, however, to be identified with 
Scripture inspiration) or promulgated them as divine 
norms, v. g. t the hierarchy, the matter and form of the sac- 
raments (James 5, 14), the privilegium Paulinum. Hu- 
man is that portion of the Canon Law which has merely 
human authority for its existence; thus the Apostolic 
decrees (Acts XV) are of human authority though es- 
tablished by Apostles ; purely human laws, too, are those 
passed by councils, popes, and bishops, unless, indeed, 
they are implicitly contained in revelation, or are merely 



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4 INTRODUCTION 

declarations, specifications, or modifications of divine or 
natural law. In the latter case they belong to the class of 
divine laws. 

b) By reason of its obligatory force, either personally 
or territorially, Canon Law is; a) either general, when 
it binds all members of the Church, or special, when it 
binds only some members or a class of members, c. g., 
the clergy, regulars; ft) either universal, when it is in- 
cumbent on the entire Church as far as it is spread, or 
particular, when it affects only a certain portion of the 
Church, as a province or diocese. Under this heading 
belongs the difference between the law prevailing in the 
Oriental* and that binding the Occidental Church, y) 
By reason of its promulgation we speak of written or un- 
written law, or custom (consuetudo). 

d) By reason of time, Canon Law is distributed into 
various epochs: o) jus antiquum, or old law, from the 
beginning of the Church up to Gratian's Dccretum { about 
1 1 50) ; ft) jus novum, or new law, up to the Tridentine 
Council (1545-63); y) jus novissitnum, or modern law, 
up to our time. It remains to be seen whether the New 
Code will constitute a new epoch. 

e) By reason of its matter, Canon, like civil law, may 
be classified into public and private law. Public law 
is concerned with the Church as a society, its government 
and external relations; private law with the rights of the 
members and their mutual relations. 4 

This latter distinction is rejected by most of the Ger- 
man canonists, v. g. t Philips, v. Scherer, Sagmiiller, but 
defended by Roman authors. If we subsume under pub- 
lic law the constitutional law proper, together with that 

8 Concerning the laws binding this the Codex Juris Can. 
Church see the Collectanea Prop. * Schenkl, Institutionts luris Eccl., 
Fid., 1907* II. n. 1578; can. I of 1853. I. S 38, p. 60. 



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CANON LAW S 

governing the Church's external relations, we believe 
there is nothing unwarranted in this division. Private 
law would then embrace chiefly the administrative por- 
tion of the laws. Whether we substitute the terms " ex- 
ternal " and " internal " is of little importance. 



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CHAPTER II 

THE SCIENCE OF CANON LAW AND ITS IMPORTANCE 

Abstracting for a moment from the historical resources, 
which partly date back to the founder of the Church and 
partly owe their origin to the natural development of the 
living organism, Canon Law as a distinct science owes its 
existence and splendor chiefly to the Benedictine monk, 
Gratian, in the middle of the twelfth century, when can- 
onists — and also legists — commenced to cultivate ec- 
clesiastical law systematically. 

If science means " a demonstrative syllogism " or con- 
clusions drawn from premises, it is evident that single 
laws form the stock and store out of which deductions 
are made, and which, in their turn, may become new laws 
and new bases for mental operations (e. g., exemption). 
Science demands a knowledge not only of the several ex- 
isting laws, but of their systematic and pragmatic put- 
ting together. Canonical science must be analytical as 
well as synthetic, and should be based upon critical and 
historical researches. And in this latter regard some 
progress, mainly due to the two brothers Ballerini and 
to German scholars, has been made. 

Preeminently, however, law is practical, and hence 
the canonist should not only know the law, but also be 
able to apply it to concrete cases, such as occur daily. 
This is the function of what is called jurisprudence (juris- 

6 



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IMPORTANCE OF CANON LAW 7 

prudentia sacra), or "the habit (habitus) of knowing, 
interpreting and applying the laws." 1 

As to the necessity or importance of this systematic- 
practical science, it is not too much to say that the 
" watchmen on Sion's tower," j, e. the prelates, are obliged 
to possess a more elaborate and extensive knowledge of 
ecclesiastical laws than is required of the lower clergy. 
For the prelates should be especially well versed as to 
the rights of the Church in regard to civil power, and 
should know the laws regulating their own attitude to- 
wards the clergy and the laity. This observation holds 
good also in regard to the officials of episcopal courts. 

The priests, too, are bound in conscience to obtain a 
sufficient knowledge of Canon Law to enable them to 
discharge their duties as pastors of souls and to defend 
the rights of the Church and their own position. It is a 
sad saw, often repeated, " What's the use of Canon Law, 
the prelate is Canon Law." This saying is not only 
offensive to the prelates, who are thus represented as 
arbitrary law-makers and expounders, but betrays a 
lack of reverence for a noble, time-honored science, and 
degrades those who utter that unpriestly sentiment to 
the level of cowards or sluggards. Let them rather 
hear Gratian : " Ignorantia mater cunctorum errorum 
maxime in sacerdotibus Dei vitanda est. Sciant ergo sa- 
cerdotes scripturas sacras et canones;" and again: 
" Nulli sacerdotum liceat canones ignotare." 2 

In order to make canonical science solid, extensive, and 
systematic, the canonist, and especially the professor of 
Canon Law, should be conversant not only with dogmatic 
and moral theology, but also with Church history and 
civil law. History will render the study of Canon Law 

i Schenld, op. tit, 41. 2C. 4. Dirt. 38. 



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8 INTRODUCTION 

more agreeable, give the student living pictures of the 
past, and help him to understand many laws otherwise 
barely intelligible. Civil Law, more particularly the 
old Corpus Juris Civilis, will furnish the key to a great 
many terms, v. g., in civil and criminal procedure, and 
show the connection existing between civil and religious 
law. Besides, the priest being a citizen of the State, and, 
we may justly say, a citizen of higher standing than most 
others, it appears but just that, even in this respect, his 
" lips shall keep knowledge, and they shall seek the law 
at his mouth." 8 Therefore, in this country, for instance, 
the Constitution should not be a sealed book to priests, 
nor should they be strangers to the laws governing mar- 
riage, contracts, last will, and labor. 

S Mai. II, 7, 



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CHAPTER III 

THE SOURCES OF CANON LAW 

The term source or fountain of Canon Law (fons juris 
canonici) may be taken in a twofold sense : a) as the 
formal cause of the existence of a law, and in this sense 
we speak of the fontes essendi of Canon Law or lawgiv- 
ers; b) as the material channel through which laws are 
handed down and made known, and in this sense the 
sources are styled fontes cognoscendi, or depositaries, 
like sources of history. 



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SECTION i 



THE " FONTES E5SENDI " 

a 

Taking for granted that the Church is a complete and 
autonomous society (societas pcrfecta), she must evi- 
dently possess legislative power, i. e., the faculty of 
enacting laws. For " a law is nothing else than an or- 
dinance of reason for the common good, made by him 
who has care of the community, and promulgated." l 
Therefore, every law must proceed from the legitimate 
power residing in that community for which the law is 
given. Now, the Church Catholic being founded by our 
Lord and perpetuated by the Apostles and their lawful 
successors, among whom the Roman Pontiff holds not 
only an honorary but also a jurisdictional supremacy, the 
following must be acknowledged as ecclesiastical law- 
givers: 

i. Christ our Lord, the original source of divine laws 
laid down chiefly in the Constitution of the Church, and 
next to Him the Apostles as lawgivers either of divine or 
human laws, viz.: as inspired or merely human instru- 

ments. 

■ 

2. The Roman Pontiff, either alone or in unison with 
a general council, as endowed with the supreme and 
ordinary power of enacting laws for the universal church ; 

3. The Bishops for their respective districts, inasmuch 
as they are empowered to enact laws subordinate to com- 
mon law; 



lS. TkeoL, I-II, q. 90. a. 4. 

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SOURCES OF. CANON LAW II 

4. Customs, too, must be considered as a source of 
law, universal as well as particular. 

Whether the natural law can be called a source of 
Canon Law depends on the formal declaration of the su- 
preme authority ; for the natural law as such — its extent 
ia very uncertain — cannot be called a homogeneous 
source of Canon Law except it has been declared such by 
the highest authority. 2 Besides its range being very 
uncertain, the so-called natural law is often nothing but 
a subjective sentiment, or, at most, a dictate of reason. 



2 Cfr. J. Laurentius, S.J, In- that the natural law should be cau- 
stitutiones Juris Bed., 1903, p. 9; tiously used in Canon Law. 
Schenkl, I. c- t 37, justly remarks 



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SECTION 2 



THE " FONTES COGNOSCENDI " 

These sources, as we have said, are depositaries in 
which we find collected the laws enacted in the course of 
centuries. They may also be considered as the channels 
through which the river and rivulets of legal enactment 
flow and are preserved. They do not constitute the 
law as such, but rather point out where it may be found. 
Among these sources are Holy Scripture and the decrees 
of popes and councils ; also, in a measure, custom, inas- 
much, namely, as it proves the existence and continuity of 
laws unwritten and perhaps forgotten. 

ARTICLE i 

HOLY WRIT 

3. 

1. When we speak of Holy Writ as a source of Canon 
Law, it is evident that we refer primarily to the writings 
of the New Testament. There we meet with a nucleus of 
constitutional laws which were later developed; there, 
also, are to be found moral precepts which form the con- 
necting link between the Old and New Dispensations. 

2. As to the Old Testament, a distinction must be made 
between moral, ceremonial, and judiciary laws. The 
strictly moral laws contained chiefly in the decalogue were 
received bodily into the New Law. Not so the cere- 
monial laws f which, being ordained for the external wor- 
ship of God, were modified and even abrogated by the 

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SOURCES OF CANON LAW 13 

Church, inasmuch as they were laws of the old Code and 
to some extent detrimental to the spirit of the universal 
Church, 1 and consequently have no binding force as laws 
of the Old Testament (v, g., tithes). 

The judicial laws of the Old Testament, i. e., those 
which govern man's relations to other men, were en- 
acted according to the needs of the old theocratic State 
and have lost their binding force by the coming of Christ. 
Yet as far as they suit the conditions of the New Testa- 
ment, they may, not as O. T. laws, but as rules for the 
N. T. f be used even in the Church, because they rest on 
the dictates of reason a {v. g., prohibited degrees of mar- 
riage). 

ARTICLE 2 

DECREES OF THE ROMAN PONTIFFS 

■ 

The decrees of the Roman Pontiffs have always enjoyed 
great authority in the Church, from the time of Clement 
I (-f- 100P) to our own day. 3 Their subject-matter was 
partly dogmatic, partly disciplinary ; it is the latter class 
that especially concerns Canon Law. 

1. It was customary for the Pope, soon after having 
taken possession of St Peter's Chair, and on other oc- 
casions, to gather a synod in Rome and to send the acts 
of that synod, together with a profession of faith, to 
the patriarchs and other prominent bishops. These docu- 
ments often contained matter concerning not only the 
faith but also the discipline of the universal Church, 
and were called constitute (scil. in synodo). Besides, 
the Popes were often called upon to issue what are 
called privilegia, either for monasteries or for person- 



lCfr. S. Th.. I-II. q. 103. B Cf r. Coustant, O.S.B., Epiitofae 

lib., qq. 104 S. Rom. Pontificum, Paris, 1721, a work 

still useful and highly appreciated. 



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14 INTRODUCTION 

ages placed in high station. These sometimes bore the 
character of regular documents (diplomata), then again 
they were but personal letters, though written in a more 
solemn style, and having a silk thread (litterae gratiae) 
or a hemp thread (litterae justitiae) attached to them 
(eleventh century). Later on, especially under Martin 
V (1417-31), the custom prevailed in the Roman Curia 
of distinguishing two principal kinds of papal documents, 
i. e,, bullae and brevia, which distinction is still preserved. 
At the time of Innocent VIII (1484-92) another sort of 
papal letters was introduced, not sealed but only signed 
by the Pope; their name is " Motu Proprio " (scil. scrip- 
tac litterae). This, in short, is the origin of papal docu- 



ments.* 



2. As to the form and juridical value of the various 
kinds of papal documents, the following distinctions may 
serve as a guide : 

a) Bullae, Brevia, Rescripta, and between the two 
last-named the so-called " Motu Proprio." 

a) Bullae, or Bulls, thus called from the seal of lead 
appended to, or impressed upon, the paper or parchment," 
and bearing on one side the images of SS. Peter and Paul 
and on the other the name of the reigning Pontiff, are 
solemn documents. If the matter or object to be ex- 
pedited " in forma Bullae " is a very important one, 
such as the confirmation of a bishop, the erection or divi- 
sion of a diocese, or a solemn act of the R. Pontiff, the 
leaden seal hanging on a silken cord is appended. If, 
however, the Bull contains matter of less importance, v. g., 



4 Cf. Bresslau, Handbuch der gem (precious ornament), then seal, 

Vrkundenlehrc, 1889, Vol. 1 {only from which it is transferred to the 

one vol. published), p. 67 ff.; also document provided with a seal, cf. 

Mabillon, De Fe Diplomatica, Paris, Thesaurus Linguae Lat., 1906,' II, p. 

1681. 3241 f.j Du Cange, Glossarium, II, 



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SOURCES OF CANON LAW 15 

a 

dispositions regarding minor benefices or matrimonial 

dispensations, the document has a seal of red wax 
with the images of SS. Peter and Paul, and around them 
the name of the reigning Pontiff. 9 The opening words 
are; " [Beyiedictus XV] Episcopus Servus Servorum 
Dei." T A special kind of Bull are the " Bullae dimidi- 
atae/' which are issued between the election and corona- 
tion of a Pope, and bear only the image of the two Apos- 
tles, whilst the reverse side of the seal is blank. 8 

p) Brevia, or Briefs, which have grown out of the 
letters closed with wax, are issued in the Secretaria 
Brevium, and generally concern minor affairs (negotia 
non grazna), although, at times, in order to save ex- 
penses, Briefs are issued regarding matters which would 
really require a Bull, v. g m , the erection of Abbatiae Nul~ 
lius. They begin with the name of the Pontiff, thus : 
" Benedictus Papa XV," and end with the words: "Sub 
annulo piscatoris" 

" Motu Proprio's " and Rescripts have no special form. 

We may add that the Bullae are now no longer written 
in Gothic but in the usual Latin letters, on parchment. 8 

b) Concerning their juridical value, it must be noticed 
that papal documents are variously styled: a) Constitu- 
tions, named after the ancient imperial constitutions, are 
Apostolic letters referring to important matters which 
concern the universal, or at least the entire Western 
Church. They may also be called, not improperly. En- 

c 

tActa Leonis XIII, i88i, t I, p. patriarch, ityled himself "Servant 

184 f. of the servants of nod." 

7 This title dates back to the pon- 8 Cf. Ciromi Observation*!, e<J. 

tinea te of St Gregory the Great Riegger, 1761, p. 5. 

(590-604), and U of monastic origin, Thus ordained fay Leo XIII, Dec 

the monk* calling themselves '* serv- 39, 187B; elr. Arch-.: fiir kath. Kir- 

ants of God," and this Pope, to re* chenrecht. Vol. 41, p. 309; Aichcer, 

prove the arrogance of the Byzantine Compendium Juris Ecclesiastic*. { 

10. 



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16 INTRODUCTION 

St 

cyclical letters, though these generally refer to the per- 
sons addressed ( viz. : the hierarchy ) and contain less 
juridical matter {v. g., * Rerum novarum," of Leo XIII, 

! 1890. 

fi) Decrees; or decretals, to which belong those letters 
issued " Motu proprio" and 4 'ad instantiam " (re- 
scripts), broadly speaking, touch upon particular affairs 
and contain favors and privileges or answers to ques- 
tions proposed by private individuals. It must, how- 
ever, be added that " Motu proprio " does not exclude in- 
sistence or a request from interested parties. 



ARTICLE 3 

THE CANONS OF COUNCILS 

Councils, as history testifies, were generally called at 
times when a crisis threatened the Church at large, 
or at least a considerable portion thereof. Although the 
first four general councils were convoked by the emperors, 
the " Bishop of old Rome " was represented by legates, 
and the decrees adopted were acknowledged by the uni- 
versal Church. St. Gregory the Great speaks of those 
four councils as of four gospels. 10 Besides these impos- 
ing assemblies there were held provincial councils, v. g., 
at Antioch, Ancyra, Sardis, which also enjoyed great 
authority. Still a distinction was always made between 
universal and particular synods ; the canons of the former 
were received by all, whilst those of the latter had only 
local force, except when they were inserted in an authen- 
tic collection of Canon Laws. No authentic collection of 
conciliary decrees as such exists. Of general Coun- 
cils, two were held at Nicaea in Bythinia (325, 787), 

10 Registrant Greg., P. I, 24, ed. 36 (this is a model epirtola sy*o- 

Ewalil Harlrcumn (Af. C), 1891, I, dica). 



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SOURCES OF CANON LAW 17 

four at Constantinople (381, 553, 680, and 86t>), one at 
Ephesus (431) and Chalccdon (451), four at the Lateran 
(1123, 1139, 1179, 1215), two at Lyons (1245, 1274), 
one at Vienne (1311-13), one at Constance (1414-18), 
one at Basel-Ferrara-Flarence (1431-45), one at Trent 
545""63 )» an d one at the Vatican. 



ARTICLE 4 

c 
s 

THE UNWRITTEN LAW 

A certain amount of traditional law is in vogue every- 
where. It is the living spirit of the people's judgment, 
or " common sense." The Church, too, has her tradi- 
tions, which testify to the observance of discipline, al- 
though there may be no corresponding law. Thus the 
celebration of the Sunday instead of the Jewish Sab- 
bath ll is called a divine tradition. Human traditions 
are, e. g., that which causes Easter to be celebrated on a 
certain day and the existence of minor orders. 

Besides, there are uritings of ecclesiastical authors 
which prove the existence of certain customs in ancient 
times. These, however, if not embodied in an authentic 
collection, have merely historical value. 

Leaving traditions aside as being now defined and to a 
great extent determined, Canon Law is more especially 
interested in custom, which shall be treated in the Com- 
mentary proper. 

c 
o 

11 C. 5. DUt 11. 



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CHAPTER IV 



HISTORY OF THE SOURCES AND LITERATURE OF CANON LAW 
s 

The chief authorities to be consulted are: 

Ballenini, Peter and Jerome, in their ed. of the Opera 
Leonis M., t. 3 (Migne, Pat. Lai., t. 56) ; 

P. Coustant, O.S.B., Epistolae Rom. Pontificum, 
Parisiis, 1721, Praef.; 
_^-F. Laurin, lntroductio in Corpus Juris Can., Friburgi, 
1889; 

F. Maassen, Geschichte der Quellen u. der Literatur 

des Canonischen Rechts, Gratz, 1870 (Vol. 1, the only one 

published) ; 

_^-^J. F. Schulte, Geschichte der Quellen w. Literatur des 

Canonischen Rechts von Gratian bis auf die Gegenwart, 

i&75* 3 vo13 -; 
Aug. Theiner, Disquisitlones Critlcae, 1836. 

The critical and historical method of treating the 
sources of Canon Law began with Humanism, or, more 
properly, with Nicholas of Cusa (Cusanus, + 1464). 
That the Pseudo-Isidorian Collection should be first at- 
tacked was natural. But this was but a beginning. 
Much remained to be done in regard to papal letters and 
conciliary decrees. A great deal had been achieved by 
the Spaniard Antonius Augustinus, in the sixteenth cen- 
tury, but his work was left incomplete. More elaborate 
were the critical labors of the brothers Peter and Jerome 
Ballerini, who deserve a distinguished place in canonistic 

18 



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HISTORY AND LITERATURE 19 

literature. The names of Maassen and Schulte also are 
favorably known in this line of studies. 

We can give only a brief historical sketch of the col- 
lections made according to the various epochs which 
Canon Law traversed. 



I Original from 

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SECTION i 

FIRST PERIOD (TO ABOUT IISO) 



Some disciplinary regulations are to be found in the 
so-called " Constitutiones Apostolorum/' a fifth-century 
collection, made up of the " Doctrina XII Apostolorum," 
" Didascalia Apostolorum," and " Canones Ecclesiastic! 
Apostolorum," to which were added the "Canones Hip- 
polyti." 1 This collection, made by an anonymous writer 
imbued with heretical tendencies, contains some tradi- 
tional customs concerning episcopal elections, ordination 
and qualities of aspirants to the priesthood, minor 
orders, etc. But it cannot properly be termed a source 
of Canon Law. 

A collection of conciliar canons must have existed 
at the time of the Council of Chalcedon (451). Most 
probably this collection contained the enactments of 
"Seven Councils/' vis.: those of Nice, Ancyra, Neo- 
Caesarea, Gangra% Antioch, Laodicaa, and Constantinople. 
To these were added later the canons of the councils of 
Ephesus, Chalcedon and Sardis (343), and the com- 
bined collection was eventually called Collectio Decern 
Conciliorum. 2 To this were prefixed the " Canones 
Apostolorum," 85 in number, which were received by 
the Trullan Synod held in the year 691-692 and are still 



1 Cfr. Funk, Didascalia <-f Consti- denhewer Shahan, Patroloay, 1908. 

tul\ones, 1906; O. Bardenhcwcr, Ge- pp. 349 ff. 

ichichlc dcr allchrtJtlichen Literatur, 2 Maaswn, op. cit, pp. 126 ff.; P. 

1003. Vol. 2, pp. 69, 355 ff.; Bar- Coustant, op. cit.. pp. LVIII. 

20 



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EARLY COLLECTIONS 21 

acknowledged in the Eastern Church as " Codex Ecclesiae 
Orientalis" 8 

Whilst these collections were chronological, the later 
ones were systematic, beginning with one by an unknown 
author and another by Joannes Scholasticus (c. 550), 
distributed into 50 titles. 

Another species of systematic collections were those 
styled " Nomocanones/' containing, as the name implies, 
both civil (vono'i) and ecclesiastical (*<W0 laws. Several 
such collections were made in the sixth and seventh cen- 
turies and one of them was revised by Photius (c. 883).* 
This caesaro-papistic collection was based on the still 
acknowledged principle of the Oriental Church that " in 
illis quae canones non determinarunt, debemus sequi leges 

civiles." 5 

- 

ARTICLE 1 

c 

OCCIDENTAL COLLECTIONS 

c 

The Greek collections mentioned above found their 
way into the Latin Church as early as the close of the 
, fifth century, when a translation of the Greek canons 
was made and spread in Italy and Spain. In this latter 
country the spread of the Latin translation of the Eastern 
Councils was due especially to Isidore of Seville, and 
hence it goes by the name of Isidoriana, whilst the Latin ' 
translation used in Italy was called " Prise a." * 

In the latter country, most probably in Rome, a 



S Mi]ascli-Pc38ic ( Kirchenrecht der preface of the Dionyeian version* 

abendldndischcn Kirche t 1905, pp. " priscae trnnslationis." Cfr. I'ocW 

81 ff. el Juslelli Biblioiheca Juris Can. t 

4 V. Scherer, /. c, I, ip7- Paris. 1661. t. 1, p. xoi; Maassen. 

8 Cfr. Syntagma Atheniense. 1. 68 /. c. pp. 87 ff: Ballerini (MiRne. 56. 

(Milasch, /. c, p. 50)- col. 83 f.). 

a It was thus called from the 



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22 INTRODUCTION 

St 

Scythian monk, Dionysius Exiguus (Denys the Little, 
-|- before 555), made a translation of the Greek canons, 
213 in number, to which he added fifty " Canones Apo- 
stolorum" and 138 canons of African councils. This 
collection was increased by the *' Decretales SS. Pontifi- 
cum" issued from the time of Siricius (384-94) to the 
pontificate of Anastasius (+498), 197 in number. A 
copy of this double collection of conciliar canons and 
papal decrees, with some additional decretals, was do- 
nated by Pope Hadrian T to Charlemagne in 774, and 
1 subsequently called Dionysio-Hadriana. It enjoyed 
great authority in Italy, Gaul, Africa, Spain, and Eng- 
land. 7 

In Africa a collection of the decrees of councils held 
from 397 onward was made at an early date and con- 
densed into the " Breviatio Canonum" of Fulgentius 
Furandus towards the middle of the sixth century. A 
systematic handbook destined for school use was the 
work entitled " Concordia Canonum " of Cresconius, 
published in the year 690/ 

Of Gallic origin are the so-called " Statute Ecclesiae 
Antiqua" of the sixth century." Another collection of 
French descent is that named from its editor Paschase 
Quesnel, Questielliana, and the one published by d'Achery, 
O.S.B. (-|- 1685), called Dackeriena™ The latter au- 
thor also edited a collection of penitential canons which 
goes by the same name, but was originally called " Collec- 
tio Canonum." 

Spain had the fsidoriana, which through the magic 
name of St. Isidore (+636) gained great authority, and 



7 Maassen, /. c. pp. 444 ff.; pp- B Migne, 56, 28*; 273 f.; Maaswn, 

965 ff.; Migne, /. c, 19s f. I. c, 79 t .; 806 ff. 

a Mabillon, Iter Italicum f 1724, W Ballcrini, /. c. (Migne, 53, 

II; cd. Th. Sickel, 1889. 106 f.>; Maawen, ft, c, 38a t 



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SPURIOUS COLLECTIONS 23 

was twice revised between 589 A. D. and the close of 
the seventh century ; and a collection made by, or pub- 
lished under the name of, Martin of Braga, and circu- 
lated as "Capitula Martini. 1 * u 

Besides these collections of Canon Law proper, the 
Penitential Books, published especially in Ireland, Eng- 
land and France, enjoyed great esteem. 12 

For the jus liturgicum the Sacramentaria 13 and Ordines 
Romani M are of great importance. For the chancery of 
the Roman Curia, its style and methods of expedition, 
the " Liber Diurnus " is invaluable. 



ARTICLE 2 

SPURIOUS COLLECTIONS OF THE NINTH CENTURY 

The ninth century was rife with fabrications, not only 
in hagiography, but also in Canon Law. To this cate- 
gory belongs a collection named Continuatio ad Capita- 
laria Regum Francorum, which the Levite Benedict of 
Mayence professes to have taken from the archives of 
that Church and compiled at the request of Bishop Hatto 
(825-47). It contains genuine canons and decrees side 
by side with spurious ones manufactured by Benedict. 15 
Not much different in character and style are the Capitula 
Angiiratnni. Roth this and the former collections origin- 
atcd in northeastern France, 1 " 

c 
a 

U Mipn, 141 f.; 309; Maassen, l* Probst, Die altesten r$m. Sacra- 

436 f.; 536 IT ; 848 ff mentarien, 1A92. 

"'- \1i,-ik-. 53, 218; Maassen, 8oa l&Clr. Monumenta Germaniat 

ff.; 677 ff. Hutorica, Leges, II, a, 39-158. 

lBCfr. Wasserschleben, Die Buss- 18 Cf r, Hinschius, Decretties 

ordnungen der abendlandischen Pseudo-Isidorianoe et Capitula An- 

Kirche, 1851; Schmitz, Die Buss- gilramni, 1863, PraeL, CXCIIIff.; 

buchtr, 1883. CtXXX, p. 7S7- 



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24 INTRODUCTION 



The Pseudo-Isidorian Decretals 



This collection has, since the fifteenth century, claimed 
the attention of critics. That it contained considerable 
fraudulent matter was perceived by the famous human- 
ist, Cardinal Nicholas of Cusa, 11 and has since been 
acknowledged by most w Romanists," although some later 
writers, like Torres, Malvasia, and Cardinal d'Aguirre, 
defended its genuineness. 

i. Contents. The collection consists of a preface and 
three parts. The Prtpfatio contains the foreword of 
pseudo-Isidore (Mercator or Pcccator), a spurious let- 
ter of Aurelius of Carthage to Pope Damasus with the 
latter's equally spurious reply, and the " Ordo de Cele- 
brando Concilio." 

Part I contains 50 Canones Apostolorum and decretals 
of Popes from Clement I to Melchiades (-(- 314) — the 
latter, with the exception of the Clementine letters, all 
manufactured by " Mercator." lfl 

Part II is made up of (a) De Primitiva Ecclcsia, (b) 
Exemplar Constihtti Constantim, and (c) Canons of 
Councils from the Nicene to the second of Spain, partly 
in the form of the Hispana, partly in that of the Qucs- 
nelliana. 19 

Part III exhibits some excerpts from Pope Silvester 

en 

and a number of genuine decretals from Mark (-(- 336) 
to Gregory II (715-31) in the form of the Hispana. 20 
The number of apocryphal decretals is about 46 and 
that of the chapters which the author himself compiled 

about 104." 

■ 

it Concordanlia Catholica, III, 2; ft. 

Ballcrini (Mignc, 5S. 210). 20 Hmschius, LXXXIX 

lBHinschiua, /. c. t p. LXX. fli Cfr. Coustant, /. c, CXXVI; 

IB Hintchiui, I. c, pp. LXXXIII Hinachiut, CVIIL. 



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SPURIOUS COLLECTIONS 25 

2. Author and Time of Composition. It is commonly 
held that the birth-place of these pseudo-decretals must 
be sought, not in Rome (as Eichhorn and Theiner 
claimed), but in the western part of France. The exact 
place still forms a matter of controversy. While some 
{v. g. Hinschius - 2 and von Scherer 23 ) regard the diocese 
of Rhcims as the home of the fraudulent compiler, oth- 
ers (especially Fournier 24 ) assign him to the province 
of Tours and in particular to Le Mans. 

As to the time of compilation there is no great diver- 
gency of opinion, for it is generally set between 847 and 

I 853 " 25 

3. Purpose of the Compiler. It is scarcely credible that 

the author had for his sole purpose the aggrandizement 
and defense of the Apostolic See, 20 or that of the bishops 
of Gaul or any particular part of it. 27 He says in the 
preface that he desired to gather the scattered canons 
into one volume. However, this was not his only pur- 
pose, otherwise his fabrications would have been super- 
fluous. There can be no doubt that the compiler had 
still another end in view. This was, as Fournier 28 and 
others set forth, a twofold one: (a) to protect the au- 
thority of the bishops and clergy against encroachments 
of the potentates and lay-power at large, and (b) to 
secure the authority of the Roman Pontiff over particu- 
lar synods, and to defend the hierarchy in all its degrees. 
Concerning the first point the emphasis laid on immunity 
is most notable. As to the other point it may be noticed 

22 Pscudo-Dccretals, Pief., CCXI. 25 HinachiuB, /. C. p. CCI. 

38 Uandbich des KirchtnveeHs, 26 Ballerim (Migne, 53. 346). 

1RR7, I, 23i f. 27 Hinschius. /. r., CCXIII f. 

24 Les Faustes DicrHais. in Rt- 2SRtvue. d'Hist. Eccl.. iqo6, p. 

vue d'Hittoire Eccl., 1906, 784. 548. 



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26 INTRODUCTION 

that the Apostolic See was not in need of apocryphal 
documents to assert its rights. 20 

4. Influence of the Collection. It has frequently been 
said that Pseudo- Isidore ushered in an entirely new dis- 
cipline. If this were true, only a solemn anathema on 
that fraudulent writer could repair the damage done to 
Canon Law. However, we must beware of both ex- 
tremes — overrating the influence exercised by this col- 
lection as well as minimizing it unduly. A little distinc- 
tion may be helpful in determining its true influence. 

The material sway it exerted we see in the greater 
dependence of bishops and provinces on the Holy See — 
more centralisation — and in the outspoken tendency of 
the compiler to accentuate what we comprise by the 
term " immunity," and by extending the matrimonial 
degrees, which was then unheard of. 

The formal influence consisted in the precision and 
divulgation of laws which, though already existing, were 
not yet accurately determined, v. g., concerning the con- 
firmation and deposition of bishops, appeals, immunity. 
It cannot be denied that this fraud rendered a bad serv- 
ice to Canon Law, bringing it into discredit and evil 
repute for a time. 30 

In Germany two collections were widely known and 
made use of, to which may be added a third. They are: 

a) Regino of PriinVs " De Synodalibus Causis et Dis- 
cipline Ecclcsiasticis," which was made between 906 and 
915, in which latter year Abbot Regino died. 81 



29 Dallcrini (Mignc, $6, 246). H. Dnvenport, Oxford, 1916. 

SO Von Scherer, /. c, X, M7; 31 Cfr. Ttallerini (Mijn«, 56. 3*9)1 

Coustant, /. c, Praef.. CXXVIL Regino's collection was published in 

An excellent monograph in English, Migne, i\;-> 17 f. and by Wasser- 

by a Protestant lawyer, is now avail* schleben, 1840. 
able in Tht Faht D$cretals, by E. 



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MEDIEVAL COLLECTIONS 



b) More renowned is the " Decrctum Burchardi." 
Burchard was Bishop of Worms, and composed his col- 
lection for practical purposes, especially for the visitation 
of his diocese. It consists of twenty books, the nine- 
teenth of which is called " Corrector sive Medicus " and 
treats of penitential discipline. Burchard's chief sources 
were the " Collectio Anselmo Dicata," whose arrange- 
ment he adopted, and Regino's collection. Besides, he 
quoted many false decretals (about 173 in number), and 
invented new ones (about 59). He also changed or 
mutilated the inscriptions of titles and chapters. 82 But 
despite all these shortcomings the work found a ready 
reception, not only in Germany, but also in Italy, where 
Gratian introduced it into his Decretum " as " Brocardi- 



cae." 



c) Belonging to the " Gregorian M group is the " Capi- 
tulare" or " Breviarium Hattonis," composed about 
1080." 

c 

ARTICLE 3 

COLLECTIONS OF THE TRNTH AND ELEVENTH CENTURIES 

h 

The Pseudo-Isidorian Decretals were followed by other 
collections, more or less spurious, not only in France, 
but in Italy and Germany as well. The age was prolific in 
forgeries. 

I. In Italy there was one published which is not as 
yet printed, although it would, according to our view, 
based upon inspection of the original MSS.," deserve 



a» Cfr. Fcurnirr. Etudes Critiques. tktca Patrum, VII, P, III, 1-76; v. 

as See Fiicdberg, Decrttum Ma Scherer, /. c, I, 240- 
ffistri Gratiani, Leipsic, 1879, pp. <*& Contained in the Cod. Paris. 

XLVff. 1539a. Cod. Mutinens.; bealdca in 

■4 Edited by Mai, Nova Bibiio- the Palat. Vat. 580 and 581, which 



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28 INTRODUCTION 

more attention. This, the " Col ice tin Anselmo Dicata" 
was made towards the end of the ninth century. 

The investiture controversy brought forth some col- 
lections which are all imbued with the spirit of Gregory 
VII and therefore called " CoUectiones Gregorianae." 
To this group belong : 

a) The Collectto Anselmi Lucani (Anselm of Lucca, 
+ 1086); 

b) The " Collectio Canonutn Cardinalis Deusdedit," 
dedicated to Pope Victor III (1086-87) ; 34 

c) The " Decretales Bonizonis," composed soon after 
\^ 1089; 

d) The " Poly car pus" of Cardinal Gregory, issued 
soon after the death of Pope Calixt II (+ 1124). 

The Vatican Library furthermore contains some in- 
teresting MSS. pertaining to collections of that period, 
which await publication. 87 

3. In France some notable special treatises were pub- 
lished, e. g., Hincmar of Rheims' " De Divortio Lothari 
Regis" 8a and Jonas of Orleans' (+ 843) " De Laicali et 
Institutione Regali." *• Collections proper are : 

a) The " Canones Domni Abbonis" of Fleury 
(-}- 1004), dedicated to King Hugh and his son Robert, 
a collection of genuine canons and papal decretals, also 
containing Capitularia Regum Francorum and Novel- 
he.* 

b) A " Compilatio Juris Canonici" of about the 



are written in the Carol ingian sa Published by Martinucci, i860, 

minuKulei. This Anselm, to whom and by Wolf von Glanvell, 1905. 

it is dedicated, was Archbishop n? Cod. 1339 in 5 books; Cod. 1346 

of Milan, 683-97; cfr- Ballerini in 7 books, more or less dependent 

(Migne, 56, 315 flf.), Coustant,^/. c, on Pseudo- Isidore. 

Praef., CXXVI; Fournier, Etudes 88 Migoe, Pal. Lot., 12$, 623 ff. 

Critiques sur le Dicret de Burchard «9 Migne, /. c. t io6 f iai ff. 

de Worms, 1910, p. 10. 40 Ballerini (Migne, 56. 320, 130. 

47jfJ.>. 



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MEDIEVAL COLLECTIONS 29 

same date, treating of the reception of heretics and some 
of the sources of Canon Law. 41 

c) The " Decretutn Ivonis Carnotensis" (-\- 1117), 
which consists of seventeen books, and the same author's 
" Panormia" in eight parts. The former is a rich col- 
lection not only of canonical matter but also of theological 
lore, e. g., on baptism, confirmation and the Holy Euchar- 
ist The " Panormia w was said to be the compilation 
made from Ivo's Decretum by the Catalonian Hugo, but 
it is probably Ivo's work.* 2 

d) A " Collectio Triutn Partium," divided into 29 
titles, was made from Ivo's work soon after his death. 4 ' 
Then there is the work of Alger of Lidge " De misericor- 
dia et justitia," c 1121, consisting of three parts. 44 

In Spain a collection of 15 books appeared shortly 
after the Pontificate of Urban II (1088-1109).* 5 

41 V. Scherer, I, 238. 44 Migne, 180, 857 ff,; v. Scherer 

4lTheiner, I. c, pp. 162 f.; Migne, I, 242. 

56, 104. ftoBallerini (Migne, 56, 353 f.). 
« Tackier, /. c, pp. 154 ff. 



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SECTION 2 

SECOND PERIOD (*TO THE COUNCIL OF TRENT) 

This epoch is distinguished by two prominent charac- 
teristics. Canon Law becomes independent of theology 
as such and is cultivated as a science proper. The 
" Magister n ushers in that period, so glorious for canon- 
ical lore and resplendent with names immortal. The 
appearance of standard or authentic collections sheds 
lustre on Canon Law, which now grows into Pontifical 
Law and irradiates immediately from St. Peter's Chair. 
These authentic collections are now, first of all, to be 
considered. It is necessary, however, to premise a few 

words on the famous Decretum Gratiani. 

■ 

c 

ARTICLE I 

THE DECRETUM MAGISTRI GRATIANI 

I. Author and Name. — As the glossators testify, the 
author of the famous Decree is Gratian, who lived and 
taught as a member of the monastery of SS. Felix and 
Nabor at Bologna. It is most probable that this mon- 
astery then belonged to the Camaldulese. Of Gratian's 
career we know nothing, except that he died before A. D. 
1160. 1 

There is historical evidence that the M Magister," as he 
was called, had entitled his work " Concordia Discordan- 



1 Cfr. Maurus Sarti, 0. Cam., De QutUen, 1875. Vol. I, pp. 46 1; Lau- 
Clarix Archigymnasii Bononitnsis rin, /, c, p. 10. 
Proftstoribui, 1769-72; Schulte, 

30 



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DECRETUM GRATIANI 31 

tium Canonum" 3 His purpose, according to his disciple, 
the famous Magister Rolandus (later Alexander III), 8 
was to make apparently contradictory canons agree 
and to remove latent divergencies. However, already 
towards the end of the twelfth century, the collection 
was commonly called Decretunt Magistri Gratiani, al- 
/ though it was also cited by the names " Codex/' " Cor- 
pus," or " Liber Decretorum," or simply, " Corpus Juris 
Canonici." * 

2. Division. — The threefold general division was made 
by Gratian himself, — De Personis, De Causis, De Sacra- 
mentis} 

Part I consists of 101 distinctions, divided into canons, 
— but not by Gratian. It contains a treatise on the prin- 
ciples of Canon Law and a long treatise " De Electione 
et Ordinatione Clcricorum." 

Part II was divided by Gratian himself into 36 Causae, 
and each causa into Qucestiones, which, in their turn, were 
subdivided into Canones. The first ten Causae might 
be inscribed " De Judiciis"; Causae 11-20, " De Bonis 
Ecclesiasticis ct Regularibus." Causae 21—26 treat of 
benefices and privileges, Causae 27-36, of marriage. 

Causa 23, Quaestio HI, contains the " Tractatus de 
Poenitentia," which Gratian inserted here, but did not 
himself divide into seven DisHnctiones, as we now have 
it. 

Pari III was inscribed, "Liber de Sacramentis," for 
which title Paucapalea substituted " De Consecratione." 
It is divided into five distinctions. 

3. Mode of Alleging. — A canonist will never quote, 



p 



2 Friedberg, Dec-return Magistri 4 Latino, Fntroductio, p. 35. 

Cratiani, 1879. Prol., X. 6 CFr. Schulte, Quellen, I, 50B. 

s Summa Magistri Rolenii, ed. 9 Ibid., I, 50 ff. 
Thaner, 1874. P- 4- 



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32 INTRODUCTION 

St 

e. g., " in Decreto Gratiani," but follow the usual mode of 
citing the decree : 

Part I: c. i, D. i, which would read : Canon first, Dis- 
tinction first. Sometimes we find the initial words only 
quoted, e. g., " Si quis apostolicae," LXXIX, which is 
Can. 1, Dist. 79. Of course, in that case the index must 
be consulted, which now takes the place of memory, on 
which the law-students of former times had to rely. 

Part II has the distinctive sign C (Causae, written with 
a capital C), taking the middle between canons and ques- 
tions, thus : c. 29, C. tf $ q. 4, or again with the initial 
words of the canon: ''Si quis suadente diabolo," which 
is the canon quoted in number and abbreviated letters. 
De Poenit entia: c. i, Dist. 5 de Poenit. which reads: canon 
I, Distinction 5, with the characteristic sign, " De Poenit." 
We must draw attention to the fact that two of the 
Causae exhibit a transposition of questions ; in Causa 2, 
quaestio 5 is placed immediately after 3 ; and in Causa 16, 
quaestio 5 directly follows 3. 7 

Part III ; c. 16, Dist. 5 de consecr(atione), which signi- 
fies canon 16, Distinction 5 de consecratione ; or again 
with the beginning words: " Quadragesima summac" de 
consecr. 

Note that older canonists simply quote " in Decretis " 
with the initial words of the canons, and if the text 
does not fully cover the proof, they say " org " (argumen- 
tum). 8 

4. Rubricae, Dicta Gratiani, Paleae. — To show the 
author's method it suffices to point out the brief sum- 
maries which precede almost every canon or authority 
alleged by the n Magister." These summaries are placed 
at the head in red (ruber) ink and hence called rubricae. 9 

7 Laurin, i, c, p. 7 (thus al&o in • id., pp. 9 f. 

Fricabctg's edition). 9 Cfr. Schultc, /. c, I, 54- 



ci byC 'Ic 



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DECRETUM GRATIANI 33 

Furthermore, the Master employed at times some 
longer expositions, which were either to prove his view 
on certain canons or a deduction from the authorities 
alleged. These elucidations were styled paragraphi or 
d'eta Gratiani They are to be found either before or 
after a distmctio or causa or quaestio, and savor of the 
scholastic disputation. 10 They were intended to remove 
contradictions between different canons by pointing out 
that one canon formed the rule, whereas the other was 
an exception, or that one contained a precept, whereas 
the other was only a counsel ; one emanated from a higher, 
the other from some inferior authority; one was given 
for the universal Church, whereas the other referred to a 
particular province, etc." 

The Decretum, as now published, contains many addi- 
tions which are not the work of Gratian. It is certain 
that the Master's disciple, Paucapalea, added some de- 
cretals, wherefore all the additions were called paleae. 12 
Their number is not quite certain, perhaps they form 
166 out of the 3848 chapters of which the Decretum con- 
sists. 18 

5. Sources and Authority. — (1) The sources are 
either directly or indirectly taken from their collections 
and collectors. The direct sources are 17 apostolic can- 
ons, apocryphal as well as genuine decretals from Pseudo- 
Isidore, the writings of the Fathers, four chapters from 
St. Benedict's Rule, and Roman, Visigothic and Frankish 
civil laws. 

Indirect sources were those of the collections : Anselmo 
dicata, Regino, Burchard, Luccani, Deusdedit, Polycarp, 



10 lb., ss ff. A famous "die- 12 Another explanation, vi*. that 

turn Gratiani" is that ad c. 16, C. of "straw" (palea), is given by Hu- 

25* 3- '1 on the nature of privileges. guccio, ad c. 51, C .7. Q. 2- 

xi Schulte, /. c.j I, Co; v. Scherer, is Friedbern, /. c, Proleg., y. 

/. c. t I, *41- XIV; Schultc, /. c, 1, 56 ff. 



jle 



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UNIVERSITY OF WISCONSIN 



34 INTRODUCTION 

Ivo, Algerius. 14 But the lack of critical genius of his 
age is also noticeable in Gratians' work. 

(2) The reception given to the Decretum is almost 
incredible in our critical time. It was called "opus 
aureum " or " divinum decretorum opus." 1B There 
seems to be a reason for the applause with which the 
Magister's work was hailed : on account of the rich ma- 
terials he had gathered and the scientific method he had 
adopted, especially in his " dicta " and general arrange- 
ment, the Decree soon made other collections superfluous 
and was generally used in schools and courts. 18 
•»*'■* In spite of all this veneration, however, the Decretum 
Gratiani has never been considered or declared an au- 
thentic collection. It was made by private authority and 
remained such. Hence its authority is neither more nor 
less than the sources laid under contribution are worth. 
A decree made by a universal council (consideratis con- 
siderandis) has the value of a universal law; a canon 
adopted by a particular council receives no additional 
force by being inserted in the Decree beyond that which 
it had before Gratian, etc. Hence each source must be 
examined independently as to its origin, authenticity, and 
authority. 

At the same time it must be remembered that the 
Decree, on account of its popularity and the influence 
it exerted on teachers and judges, paved the way for 
other collections, which were no longer of merely private 
authority. 

6. Time and Editions. — When Gratian composed his 
Decretum is a matter of controversy. We do not bc- 



p 



HFriedberg, /. c. t pp. XIX ff.; p. Laurin, i. c, pp. 44 *• 



--. 



XLII. wSarti. /. c. I. 347: Berardi, 

lfiCfr. Berardi, Gratieni Canon** I c, Praef., XXVIII; Schulte, L C. 
Cenuini, 1783, I; Sarti, /. c, 1, J47; I, 329. 



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DECRETUM GRATIANI 35 

lieve that intrinsic reasons will ever be found to clearly 
determine the time of its birth. What has been urged lT 
in favor of an earlier than the usually accepted date, is 
not solidly proved nor free from bias. Extrinsic rea- 
sons rather favor 1150-1151 as the probable year of pub- 
lication. The glossa of Joannes Teutonicus ad c. 31, 
C 3, q. 6 and an old MS. state these two years, respec- 
tively. 18 

In the course of centuries the Decretum was often 
copied, sometimes with and sometimes without glossae, 
and the faithful rendering of the original text depended 
on the care of the copyists. Mistakes and corrections 
were already noticed by St. Antoninus (-(- 1459) and 
they increased after the art of printing had been invented. 
Antony de Mouchy, in the edition of 1547, and Antony 
Conte, in the Paris edition of 1556 and the Antwerp edi- 
tion of 1570, drew attention to spurious decretals. The 
Correctores Romani endeavored to eliminate some palpa- 
ble errors and to render the text more intelligible. In 
1580 and 1582 appeared a so-called official but not au- 
thentic text. 1 * Henceforward the Decretum was re- 
printed by private savants, generally in connection with 
the " Corpus Juris Canonici." 20 

Appendices and Compilations.— Soon after the pub- 
lication of the Decree some decretals were added to it 
or separately published, e. g. t the "Appendix Concilii 
Lateranensis," the " Colledio Bambergensis," the "Col- 
lectio Lipsiensis," the "Decretales AUxaniri 1IL" %1 



it The formula " satvQ sedis apo- tempore Eugtnii ttrtii; " Lauria, /, 

ttelieae auctoritate " has been alleged c, p. 34. 

by Thriner and Schulte to prove lOTheiner, I. c, app., p. j; Fried- 

1139 u the year of divulgation. berg, Prolog. t L XXV if. 

ie The codex reads: "Decretum 20 Cfr. below on the whole C. J, 

Gratiani, monochi, Felicis Bononien- C. 

iu, Ord. S. Benerlicti completum in 21 Cfr. Theiner, /. c, p. 4 ff. ; 

dicio monaiterio anno Dmi. MCLI, Schulte, /. c. t I, 77 ff. 



sd by GoOgle 



j ^ Original from 

UNIVERSITY OF WISCONSIN 



36 INTRODUCTION 

St 

Of greater importance than these were the five so- 
called Compilationes, vis.: 

a) Compilatio I Bernardi Papiettsis, entitled by the 
author " Breviarium Extravagantium," issued between 
1 187 and 1 191, divided into 5 books with titles and chap- 

/ ters according to the famous verse, " iudex, judicium, 
clerus, connubia, crimen" 

b) Compilatio II, by John of Wales (Joannes Walen- 
sis), published before 1200. Neither of these compila- 
tions is authentic, whereas the folowing three must be 
considered authentic: 

c) Compilatio III, made at the request of Innocent 
ITI by Perrus Collavicinus or Beneventanus (1210). 

d) Compilatio IV, perhaps made by Innocent III him- 
self, and consequently before or about 1216, although 
published only in 1217. 

c) Compilatio V, made and promulgated under the 
auspices of Honorius III, 1226. 22 These three collections 
were alleged in schools and courts in the same manner 
as the Decretals. 



ARTICLE 2 

DECEETALES GREGORII IX (l234) 

I. Name. — By a Bull dated Sept. 5th, 1234, Gregory 
IX promulgated a collection of " Constitutions and De- 
cretals," to which he himself, referring to the five pre- 
ceding, attributed the name " compilatio." It was soon 
called "nova" (scil. compilatio) as well as "Liber Ex- 
travagantium" (scil. extra Decretum) and added to the 
five other compilations. However, the name u Decre- 

32 Cfr. Theiner, /. c, pP- ■ **-! tiottes Antiqua*. i88j; v. Scherer, I, 
Schulte, /. c, I, 80 ft'.: Laurin, J. c, a*7. Jl. 
97 ff.; Friedberg, Quinque Comptia- 



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DECRETALS OF GREGORY 



37 



■ 



tales " became more usual and finally exclusive, 28 and is 
now constantly employed. 

The reason for this collection is stated in the Bull 
" Rex pacincus " as follows : Some decretals, on account 
of their length and resemblance to each other, appeared 
to cause confusion and uncertainty in the schools as well 
as courts, and to remedy this evil, the present collection 
is issued as an authentic one, to be employed in schools 
and ecclesiastic courts exclusively of all others. This 
meant that (a) the former five compilations were hence- 
forward destitute of juridical value, and therefore could 
not be alleged as law-texts by the ecclesiastical judges; 
(b) each and every chapter in its dispositive part, no 
matter what its source or authority, was to have full 
juridical value as a law-text; (c) the collection was 
to be considered the Code of Law for the universal 
(Latin) Church, to the exclusion of all others of a general 
character. But this collection did not abrogate either the 
Decretum Gratiani or existing particular laws and cus- 
toms, nor did it prevent the publication of later codes. 24 

2. Compiler and Matter. — As the Bull u Rex pacifi- 
cus " tells us, the Pope commissioned his chaplain and 
confessor, Bl. Raymund de I'enaforte (-f 1275), to make 
this compilation, and he accomplished his task within the 
space of four years, so that the collection could be pub- 
lished in 1234. 

The material was gathered from Holy Scripture, from 
the canons of particular as well as universal councils, and 
from papal decretals. A few are taken from the civil 
laws. Most of the Decretals, with the exception of those 
of Innocent III and Gregory IX, were copied from the 
" five compilations." There are 1971 chapters, of which 



MFricdbcrt, Corpus Juris Can., 24 Laurin, i. c, pp. Miff.! T« 

II, Prolcg., p. X. Schcrer, I, 251 £. 



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UNIVERSITY OF WI5CGNSI 



38 INTRODUCTION 

1766 are borrowed from the compilations mentioned. 
3. Order and Mode of Quoting. — The whole collec- 
tion is divided into five books according to the well-known 
verse quoted above (p. 36), each book into titles, and 
each title into chapters. Each title has an inscription, 
and the chapters are generally preceded by rubrics or 
brief summaries, which, however, are of purely private 
authority, whereas the titles, whenever their words ex- 
hibit a complete meaning (e. g., " Ne sede vacante aliquid 
innovetur," III, 9) have legal value. When the decretals 
appeared too long, Raymund cut off the arenya, or nar- 
ratio, retaining only the dispositive part. The cut-off 
parts (''partes decisae ") were marked " et infra." The 

SI • 

modern way of quoting these decretals is: f. 4, X, I, 4, 
i. e„ chapter 4, liber extravangantium (viz. extra or out- 
side the Decreturn Gratiani and the h\e compilations), 
book first, title fourth. Sometimes the beginning of the 
chapter is quoted with " extra " and the inscription of the 
title, v. g., De Consuetudine. 



ARTICLE 3 

DECBETALES BONIPACII VIII (l208) 

From the time of Gregory IX the Roman Pontiffs de- 
veloped much legislative activity. Thus Innocent IV 
(Fiesco), a canonist of merit, issued various Decretals, 
which he himself collected and divided into 28 titles with 
42 chapters. Another collection was sent by the same 
Pope to the famous University of Bologna, in 1253. M 
Alexander IV, Clement IV, and Urban IV also issued 
Decretals, which were sometimes simply added to Greg- 

WThcincr, I. c, p. 66; Schulte, Quelten, II, 30 ft.; Laurin, I, c. 

Pp. 166 fl. 



'■-. 



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DECRETALS OF BONIFACE VIII 39 

j 

ory's collection, sometimes remained " x," as Novellae?* 
These motley decretals caused some uncertainty. Where- 
upon three dignitaries, William, Archbishop of Embruns, 
Berengarius, Bishop of Beziers, and Richard of Siena, 
Vice-chancellor S.R.E., were ordered by the Pope to 
" revise " the Decretals, and after revision, to send them 
to the universities of Bologna and Paris. This was done 
in 1298, and the collection thus made at the request of 
Boniface VIII was added to the existing Decretals of 
Gregory IX as a continuation to the same, and therefore 
called "Liber Sextos." So we read in the Bull " Sa- 
crosanctae," March 3, 1298." 

1. Matter and Arrangement. — The three above- 
named compilers took their materials from the canons 
of the first and second Councils of Lyons (1245, 1274) 
and from the Decretals of Gregory and his successors up 
to Martin IV and Boniface VIII. The Decretals of the 
latter form 229 chapters. The compilers made use of the 
preceding compilations and added the eighty-eight " Regu- 
lae Juris," taken from Dinus of Mugello (de Rossoni- 
bus). 2S 

The title headings were taken from Gregory's, also the 
rubrics as well as the inscriptions of the single chapters. 
The latter, however, were often abridged, sometimes 
changed, and sometimes even wrongly quoted. The 
" partes decisae " were no longer marked " et infra/' but 
simply " cut off." On the whole this collection is not 
as faithful and precise a rendering of the original text of 
the Decretals as one might have expected from Boniface 
VIII, but it has the character of a juridical code. Al- 



p 



2fl Schulte, I. c, pp. 31 f.; Laurie, 28 Sarti, I. c. t 1, 234 ft; ▼■ 

I. e. t pp. 171 ff. Schcrer, /. ft, I, 352; Laurin, I. e., 
2T Friedberg, Corpus Juris Can., 177. 

II, 933 t 



v ,1,., Original fro ni 

UNIVERSITY OF WISCONSIN 



>gle 



40 INTRODUCTION 

though called Liber Sextus " and intended, as it were, 
to be a continuation of the Gregorian Decretals, it is 
I really an independent collection, consisting, like the first 
authentic collection, of five books with their respective 
titles divided into chapters. 

Hence the mode of alleging this collection is the same 
as that of the Gregorian compilation, with the sole differ- 
ence that VI or 6° is substituted for X; hence: c. i, 
6\ r, *=chap. I (Liceat), in the Liber Sextus, book I, 
title 2 de Constitutione. 

2. The juridical value of the Liber Sextus is nearly 
the same as that of Gregory's Decretals, which were not 
abrogated by this collection. But it invalidated all the 
Decretals issued between Sept. 5, 1234, and Dec 24, 
1294, and not inserted in the " Sextus " or reserved, i. e. $ 
indicated as such. The "Regular Juris" have no legal 
value." 



ARTICLE 4 

CLEMENTINAS (1317) 

t. As the troublesome times required, Clement V pub- 
lished several constitutions, especially at the Council of 
Vienne in France (1313). He had them collected later, 
it seems, and sent to the two French universities of Or- 
leans and Paris. This was after their promulgation at a 
public consistory held in the castle of Monteaux (de 
Montiliis), near Carpentras, in southern France. This 
collection, for some reason or other, was revoked by 
Clement himself, and only after his death (1314) were 
these Decretals, which had meanwhile been revised by 
" more skilful " hands, promulgated by his successor, 

a» Schulte. I *., II, p. 4; Friedberg, C. J. C, II, 935 *• 



§le 



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UNIVERSITY OF WISCONSIN 



" 



CLEMENTINAE 41 

John XXII, in the Bull " Quoniam nulla," October 25th, 
1317. This collection is styled in the manuscripts " Liber 
Septimus," but owing to the influence of the glossators, 
the title was soon changed into " Constitutiones Clemen- 
tinae " or simply " Clementinae." 80 

2. Matter, Arrangement and Legal Value.— 
With the exception of two decretals, one of Urban IV 
and one of Boniface VIII, all the "Clementinae" belong 
to the first Pope of the so-called " Babylonian Captivity." 
These decretals are, like the two preceding collections, 
divided into five books, and these into titles and chapters, 
the sum total of the latter being 106. The mode of 
quoting the Clementinae is, with the exception of the 
characteristic sign "Clem." the same as that of the 
Gregorian or Bonifacian Decretals, vis.: c. 1, Clem. I, 2 
de rescriptis = chapter 1, Clementinae, book i, title 2 
de rescriptis ; or, as in the ancient canonists, cap. Abbates, 
Clem, (de rescriptis, which is not seldom omitted). 

John XXII in his Bull of publication commands the 
addressees to receive these Decretals with good will 
(prompto affectu) and to make use of them in future 
"in the courts and schools" (in judiciis et scholis). 
Hence the Clementinae enjoy the same authentic valor 
as the decretals of Gregory IX and Boniface VIII. But 
it must be added that the other decretals which issued 
from the Apostolic See after the Bonifacian collection 
but not inserted or mentioned in the Clementinae, did not 
lose their legal value because the Clementinae contain 



soCfr. Schulte, Quellen, IT, lection on account of aorae decretals 

451 ft.; Corpus I wis Can., ed. being too long, othcra faulty, others 

Friedberg, II, Pro]., pp. LVII ft", unsuitable, and that these mistakes 

Joannes Anrfreae in his glossa ad were then corrected by " more 

verbum " de rartero " in Const. skilled hands"; that Jolin XXII 

" Quoniam nulla " narrates that changed them cannot be proved. 
Clement V himself revoked the col- 



Gw >gle 



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i 
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42 INTRODUCTION 

no invalidating clause with regard to them, as was the 
case in the Bull of Boniface VIII, " Sacrosanctae." 8l 

ARTICLE 5 

EXTRAV AG ANTES 

1. Pope John XXII published several important con- 
stitutions, touching chiefly upon beneficiary subjects, not 
contained in the Clementinae and yet commented on by 
the glossators. Thus "William de Monte Laudano had 
furnished " glossae" on three decretals of the aforesaid 
Pope: " Sedes aposiolica," " Suscepti reglmlnis/' and 
" Execrabilis," issued in the first year of John's pon- 
tificate (1317). Zen2elinus de Cassanis also composed 
glosses on these three constitutions and, besides, on 
seventeen others of the same Pontiff, in the year 1325. 
These twenty decretals became known as the " Dccretales 
extravagantes, quae emanaverunt post Scxtum," or later 
as " Extravagantes Johannis XXII." They were divided 
into 14 titles and 20 chapters** 

2. These " Extravagantes" were published by John 
Chappuis in 1501 and 1503, together with some other 
decretals which had emanated from the Holy See, from 
John XXII to Sixtus IV. Out of these materials Chap- 
puis made a collection, which he called " Extravagantes 
Communes'' in five books with titles and chapters. 
However, the fourth book (De Matrimonio) is missing, 
for lack of materials. The whole collection is poorly 
digested and cannot claim authenticity as a collection, 
though the decretals taken singly have the authority due 
to pontifical laws, as far as they are still in force (v. g. f 
" Ambitiosae" in III, 4).' 



(13 



Si I .nurin, /. r. f pp. 90t f. SB I .Turin, ■'. c, p. 302. 

■2 Schulte, op. cit., II, 59 f. 



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THE CORPUS JURIS 43 

Mode of quoting: 

c. 2, Extr. Joannis XXII, tit. I (suscepti regiminis), 
C. un. Extr. Cotnm. Ill, 4 (Ambitiosae) . 

v- 

s 

- 

ARTICLE 6 

T 
■ 

THE "COBPL'S JURIS CANONICI " 
c 
s 

After having considered the several collections which 
were all published after the art of printing had been 
invented, cither in R\e or in three volumes, a word must 
be added concerning the whole body of them, known as 
" Corpus Juris Canonici." 

1. " Corpus Juris" was a term applied at first to any 
body of laws, and later, in the twelfth century, to the 
collection of civil laws. 8 * In a Brief of Gregory XIII, 
" Quum pro munere pastorali," July 1, 1580, the collection 
containing the Decretum Gratiani, the Decretales Gre- 
gorii, the Decretales Bomfacii, the Clemctttinae and the 
two Extravagantes was styled " Corpus Juris Canonici." 
Hence, in a wider sense, these five collections may be 
said to constitute the Corpus. 

In the strict sense, however, the title can be applied 
only to the three authentic collections, viz.: to the Decre- 
tals of Gregory IX and Boniface VIII, and the Clemen- 
tinae. The nomenclature " Corpus Juris Canonici Clau- 
suvri * is arbitrary and without foundation. 85 

2. If we regard the structure or make-up of the C. J. C. 
in its strict sense, i. e. t of the three authentic collections, 
we find inscriptions prefixed to the single titles as well 



Si Kipp, Gesch. d. Qutllm d. tits" (BuUariftm, ed. Mechlin, 1826, 

Rom, Rechtt, 1909, 168; v. Scherer, I, XIV); Laurin, /. c, pp. 19, 25, 

1, 270. 22s t. 

sa Benedict XIV, "Jam fert sex- 



* x/\dL» Original from 



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44 INTRODUCTION 

as to the chapters, which latter, moreover, have sum- 
maries put immediately before the text. 

a) Concerning the inscriptions above the titles there 
is a twofold class. Some exhibit simply the subject 
they treat of, z/. g. f De Consuetudine (I, 4), while 
others are longer and offer a clause or sentence com- 
plete in meaning, v. g. t " Ne sede vacante aliquid inno- 
veHr" (X, III, 9). The former inscriptions have no 
legal value, whereas the latter have. 

b) The "summaria" placed at the head of nearly 
every chapter are additions of the glossators and, there- 
fore, destitute of legal value. 

c) Neither legal nor historical merit can be attached 
to the indications of the sources whence the composer 
pretends to have borrowed his matter. 

d) As to the text itself, juridical value can be attrib- 
uted only to the pars decisiva or dispositiva, regardless 
of whether the source is genuine or spurious, but not to 
the narrative part or to the allegations of the contending 
parties. 36 

3. Mention must be made of the various editions of 
the Corpus Juris Canonici which are not all of equal au- 
thority. 

a) Authentic is the edition published after the commis- 
sion consisting of six cardinals and fifteen "doctors" 
had corrected fhe C. J. C. at the command of Gregory 
XIII in Rome, in 1582." But the work of the " Correc- 
tors Romani/' incomplete as it is, can claim only doc- 
trinal value. 89 However, the Roman edition had the 
distinction that it could be quoted in the ecclesiastical 

courts as well as outside of them. 89 

- 

88 Wcrnz, Jus Decretalnim, I, 30 Greg. XIII., " Quum pro mu- 

325 I. nere," July i, 1580; Fricdberg, II, 

«7 Thcincr. /. ft. app. I, pp. 3 f. p. LXXXII. 

K 

>■ L-Ui n:i, I. C., p. 69. 



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THE CORPUS JURIS 45 

b) Of purely private authority were the editions made 
by the brothers Pierre and Francois Pithou, at Paris 
in 1687. The same holds good of the critical edition of 
Justus H. Bohmer, Halle, 1747, whose "emendations" 
are not always happy.* For official purposes these edi- 
tions are useless. 

Belter and worthy of attention is the edition which 

-— Emil Frederick Richter published at Leipsic in 1839. 

He used the Roman edition as basis and added textual 

a 

corrections of his own. This edition can be safely used 
in practice, although it is not authentic. 
-"""" A later critical edition is that of Emil Friedberg, pub- 

■n 

lished in two 4to volumes under the title, Corpus Juris 
Canonki. Vol. I, 1879, contains the Dec return Magistri 
Gratiani, Vol. II, 1881, the Decretals and Extrava- 
gantes. This edition is based on extensive MS. re- 
searches, but neglects the Roman edition and omits all 

r 

1 glosses, though inserting the partes dectsae. 

40 Friedberg;, II, XLU. 



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SECTION 3 

SOURCES OF THE LAST PERIOD 



1. After the golden age of Canon Law, resplendent 
with works and authors some of whom shall he mentioned 
later, there was a setting of the sun, until the Council of 
Trent seemed to breathe new life into the half-motionless 
frame of the Church at large and the skeleton of canonis- 
tic science in particular. 

This gathering of learned men had, of course, for its 
chief aim not a reform of laws, but of morals. Still dis- 
cipline and morals cannot easily be separated, and hence 
we see that the Council, especially in its third period, is- 
sued many important enactments bearing directly on 
Canon Law. These decrees form a real source of Canon 
Law. Pius IV confirmed them and ordained that, after 
they had been duly promulgated in the city of Rome, legal 
force should be attributed to them from the first day of 
May, 1564. 1 

2. But, surprising though it be, it is a fact that, at least 
to our knowledge, there exists no authentic collection of 
these decrees. Some private editions were even placed 
on the Index. 

The most noteworthy editions are : 

a) Aug. Barhosa's " Collectanea Bullarti aliarumve 
Sutnm. PP. Cons tit utionum nee non Praccipuarum Dc- 
cisionum, quae ab Apost. Sede et s* Congregationibus 



1 Constitutions of Pius IV: "A"i- Lateran, St. Peter's, the Apost. 
cnt ai sacTotHm," July 18, 1 64 . Chancery, the Camjio de' Fiurt; ex- 
" Benedictus Dcui," Jon. 26, 1.^.4. ception was made for the " Ta- 
— The promulgation was made at the raeuri " (e. I, seas. 34 de rcf. mat.). 

46 



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POST-TRIDENTINE SOURCES 47 



S.R.E. usque ad a. idjj emanaverunt," Lyons, 1634 
(formerly on the Index). 3 

b) John Gallem art's "Concilium Tridentinutn cum 
Declarationibus Cardinalium ejusdem Interpretum," ed. 
Guerra, Venetiis 1780, 2 Vols, (formerly on the Index). 

c) Richter and Schulte's " Canones el Decreia Con- 
cilii Tridentini ex ed. Rom. a. 1834 repetiti," Berlin, 1864 
(repr. Naples, 1869).* 

3. Towards the close of the sixteenth century an at- 
tempt was made to gather the three authentic collections 
of Gregory IX, Boniface VIII, and Clement V into one 
body together with the decrees of the V Lateran and 
the Tridentine councils. Cardinal Pinello offered an un- 
digested digest, which he styled "Liber Septimus," to 
Clement VIII, in 1598, whence it was also called: 
"Ssmi. D. N. Clementis P. VIII Decretales." However, 
the Pope declined the offer and Pinello's work, though 
printed, was never promulgated. 4 

This was the last effort to codify the laws of the 
Church, until Pius X, of happy memory (" Arduum 
sane" March 19, 1904), instituted his commission, to 
which we owe the New Code. 

4. After the Council of Trent (1563) the legislative 
activity of the Popes was by no means stayed. But this 
period, owing to a more intensified centralization, made 
it imperative for the Pontiff not to divide but rather to 
distribute his power among various tribunals and con- 
gregations which came into existence soon after the 
Council. Thus the channel of laws, as it were, was two- 
fold: constitutions and decisions, 



(M 



2H. Rcusch, Per Index, II, 74. lished by the GorresgeseUachaft, 

SConct-rning the history of the Herder, 1901 ::. 

Council »f Trent see Pallavicini, 4 Sentis, Clem, VIII. Decrttalts, 

Istoria <-.'■/ Conciho d\ Trento, 1666; 1870; v. Scherer, I, 275. 

and Concilium Tridentinum, pub- 



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48 INTRODUCTION 

a) The Constitutions emanated chiefly in the form of 
Bulls, sometimes also in the form of Briefs, directly from 
the Pontiff and touched upon matters of importance for 
the Church at large. These have so far not been pub- 
lished in an authentic collection. All the so-called Bui- 
laria, with the exception of that of Benedict XIV, S are of 
a purely private character. The chief Bullaria are: 

a) L. Cherubini's Bttllarium seu Collectio Diversa- 
runt Constitutionum Multorum PonHficum a Gregorio 
VII usque ad Sixtutn V, Rome, 1586. The second and 
third editions of this work comprised the constitutions 
of the Popes from Leo I to Paul V, to which Angelus 
a Lantusca and John Paul a Roma added those from 
Urban VIII to Clement X (Rome, 1672). 

And. Barberi and Alex. Spetia published the so- 
called Continuatio Bullarii (Clement XIII to Gregory 
XVI), Rome, 1825-57. Here must also be mentioned 
the Acta Pii IX, 1854 fT. and the Acta Leonis XIII, 1881 
ff., which, however, appear to lack authentic character, 
whilst the Acta Pii X (Vatican Press, 1907 fT.) are au- 
thentic and official. 

P) Bullariutn Luxemburgense (first printed at Ge- 
neva), or Bullariutn Magnum Romanum a Leone I ad 
Benedictum XIV, 1717-28. 

y) Turinense (Al. Tomasetti), Diplomatum et Privi- 
leg. S.R. Pont, a Leone I ad Clement, XII editio, 1857-72, 
without critical discernment and with a great number of 
printing errors. 

Mention must here be made of P. Coustant, Epistolae 
RR. Pontificum a Clem. I ad Innoc. I, Paris, 1721 ; And. 
Thiel, Epistolae RR. PP. Genuinae ab Hilario ad Pela- 
gium II, 1868. Of value are also the Regesta edited by 



l" Jam fere sextus," 1746, sent e Coqvtiines, BMllarum Atnpiissima 

to Bolosrna University. Collectio, Rome, 1739-44- 



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POST-TRIDENTINE SOURCES 49 

Jaffe, Lowenfeld, Pflugk-Harttjng, Ewald-Hapt- 
mann (Greg. L), and P. F. Kehr. 

b) The decrees and decisions of the Roman Congrega- 
tions, especially those of the Congr. of the Council, were 
collected and published. The only authentic collections, 
however, are the following: 

S. Rit. C. Decreta Authentica, Rome, 1898-1912, 6 
Vols. 

Collectanea S. C. de Propaganda Fide, Rome, 1907, 2 
Vols. 

The collection of decrees of the Congr. of the Council, 
which ran first under the name of " Libri Decretorum," 
from 1573 on were gathered in the Thesaurus Resolu- 
tionum S.C.C. 1718 (resp. 1745) to 1908, in 167 vols. 
Strictly private collections are Zamboni's Coll. Declara- 
tionum S.C.C, Atrebati, 1868, 4 Vols.; Pallotini, Coll. 
Omnium Concl. et Resolv., 1564-84 (alphabetic) ; 
Lingen and Reuss, Causae Selectae, Ratisbon, 1871. 
There are also many scattered volumes of decisions of 
the S. R. R. 7 



Q 



STUDY OF CANON LAW 

It would be worth while to enter the studio of one of 
those learned canonists of the past in order to observe 
his way of studying, not only Canon Law, but also civil 
law, from which was borrowed the method of applying 
Canon Law (" ordinem placitandi ex legibus"). Then 
we might enter a law school and learn their manner of 
teaching. There, in the midst of hundreds of disciples, 



7 Besides the authors mentioned Bononiensis Profejsoribvs, Rome, 

above, the student may consult: 1768, t. I; Savigny, Geschichte des 

Doujat, Praenotionum Canonicantm Rom. Rechts im Mittelalter, 1834- 

libri qMinque, Venice, 1769; Sarti, 54, Vols. Ill and IV. 
O. Cam*l., Dt Claris Archiffi'mnasii 



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50 INTRODUCTION 

eagerly intent on the teacher's words, a Decretum might 
be seen on the professor's table. First, with a sonorous 
voice, he reads the summary of the chapter he is about 
to expound. After that follows the reading of the litera, 
i. e., the text of the chapter (or canon), with distinct ac- 
centuation and more slowly, that the students might be 
enabled to take down the wording in case they could not, 
because of poverty (books at that time were rare and 
expensive), or for other reasons, acquire the volume. 
Then the litera, if necessary, 8 is corrected, which was 
called emendatio literae. Hereupon the proper work of 
the teacher began — the exposition or expounding of the 
canon. This work comprised different acts: Contradic- 
tions were pointed out and solved by the method assigned 
by the " magister," then followed casuistry and corrobora- 
tion of the explanation given and other arguments taken 

SI 

from the Decree or other sources. 

The students under the supervision of the teacher are 
busy at work, engaged partly in repetitions, partly in dis- 
putations. The former are much like our modern " sem- 
inars," in which postgraduates or aspirants to the laurea 
expound some particular text more elaborately. Dispu- 
tations were held diebus Mercurii (Wednesdays), and 
conducted in scholastic style — sometimes, we fear, to 
extravagance. 

This method of training, if kept up from six to ten 
years, was apt to produce thorough scholars and future 
41 masters," which title towards the end of the twelfth 
century was changed to " doctors." Note must be taken 
of the fact that the universities, being few in number, 
attracted the cream of professors and were efficient in 
maintaining a choice staff. The clerical character of 

8 Cfr. Huffaccio'i Clossa on c. 31, C. a, q. 6. 



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POST-TRIDENTINE SOURCES 51 

these flourishing schools, endowed by Popes and Bishops 
with benefices and other sources of revenue, was carefully 
maintained and proved no hindrance to effective teach- 
ing, intense study, and good morals. 8 

• Cfr. Schulte, Quellen, I, pp. in ff. ; 196; II, pp. 214 f., 493, etc. 



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SECTION 4 

THE GLOSSATORS 



If we call the epoch extending from the appearance of 
Gratian's Dec-return to the Council of Trent the period of 
the Glossators, we look to the majority of writers (de- 
nontinatio fit a potiori) without intending to exclude other 
writers and writings of a different kind. 

i. Mention was made of the method the teachers were 

D 

wont to employ in school. It was but natural that the 
work of the school should not be confined within the 
school-walls but also prove a fertile soil for literary 
products. These are, to a great extent at least, still pre- 
served, either in the form of Glossae, or in the more 
stately shape of Sumtnae and Tractatus. 

In order of time the Glossae were the first literary out- 
put of the followers of the Master. A gloss : or verbal 
explanation was generally placed above the word to be 
explained, and therefor, called glossa interlinearis. Not 
rarely these glosses were placed on the margin or at the 
bottom of the page (glossae tnarginales). If continu- 
ously applied to the whole text of the Decree or the De- 
cretals, such a series was styled apparatus. 

Some authors, v. g. Bcrnardus Papiensis, preferred 
another way, viz.: that of writing commentaries, called 
Summae. These either followed the order of the text 

s 

l From the Greek yXuffera (Wn- dieitur glosta, i. *., lingua." Doujal, 

Qua) ; " dieitur expositio sententiae t. c, 1, V. c. a. n. a. 

litiram continuans et erPonens, %nde 

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THE GLOSSATORS 53 

a> 

(Decree or Decretals) closely and uninterruptedly, or 
left the order of the text and exhibited only a summary, 
using the text for the sake of proof. In this lat- 
ter case they might just as well be called Tractatus, al- 
though these, properly speaking, were rather essays on 
some particular subject (v. g. Durantis* " Ordo Judicia- 
rius"). It is sometimes difficult to distinguish between 
Sumtnae and Tractatus. 2 The glossators had the cus- 
tom of distinguishing their glosses from those of others 
by certain initials or sigla, v. g. Huguccio used H., Bar- 
tholomaeus of Brescia, B. or Bart., etc. 

2. We will name some of the most noteworthy glossa- 
tors and authors of canonical works, retaining their 
Latin names, as they were then known. To the Decretum 
Joannes Faventinus composed an apparatus about 
1179-87. Cardinaus introduced the jus civile into the 
Decree. Bazianus (+ 1197) in his glosses employed 
the decretals. The famous " Glossa Ordinaria " was 
furnished by Johannes Teutonicus, about the year 1215. 
A rich glossary based upon the preceding and on the 
compilations is that of Bartholomaeus Brixiensis, 
about 1240-45 ; it is the last gloss on the Decretum? 

The Decretales Gregorii were glossed by Vincentius 
Hispanus and Bernardus Parmensis de Botone 
(+ 1263), whose glossa is called "ordinaria*' 

The " Liber Sextus " and the " Clementinae " were 
adorned with the glosses of Joannes Andreae (+ 1348), 
one of the most illustrious canonists, " fons et tuba juris/' 
as he was called.* 

3. Summae and Tractatus. — An entire catalogue 
would be necessary to do justice to the galaxy of 
writers who flourished from the twelfth to the fifteenth 

2 Schulte, Quelle*, I, 219. * His daughter Novella also taught 

%Ib., I, 145. 19*1 17*; H, 86 f. Canon Law,— but behind a curtain! 



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54 INTRODUCTION 

century. We select the best known without wishing to 
detract from the fame of the others. Summa Magistri 
Rolandi ( Bandinelli ), later Pope Alexander III ; * Summa 
Rufini, about Ii66; Summa Stephani Tomacensis 
(1203) ; Summa Simonis de Bisiano, made about 1174- 
79; Summa Huguccionis, about 1187; Summa Bernardi 
Papiensis, about 1191-98; this is a sort of compendium 
of Canon Law." 

What were called Lecturae were in fact commentaries, 
and might also be styled Summae. Such were com- 
posed by Innocent IV (Sinibaldus Fliscus, 1243-54), 
" Apparatus in quinque libros Decretalium "; Hostiensis 
(Henricus de Scguesia, -|- 1271), " Lectura in Gregorii 
IX Decretales"; Abbas Antiquus, "Lectura seu Appa- 
ratus ad Decretales Gregorii IX," composed about 1270; 

JECIDIUS DE FuSCARARIIS (1289) ; JOANNES GARSIAS HlS- 

panus (c. 1282) ; GuiDO de Baysio, " Commentarius in 
Sextum" (c. 1299-13^2); Guilielmus de Monte 
Laudano (1343), "Lecturae super Sextum, Clemen- 
tinas et tres Extravagantes Joannis XXII" ; Zenzelinus 
de Cassanis (the same). Of great authority are the 
following: Petrus de Ancharano (1416), Francis- 
cusdeZabarellis (1417), Antonius de Butrio (1408), 
Joannes ab Imola (1436), and especially Panormi- 
tanus, also called Nicolaus de Tudeschis, O.S.B., Abbas 
Modernus or Abbas Siculus ( + 1453),— all of whom 
composed commentaries on the Decretals and the Clemen- 
tinae. 

The following works rather resemble treatises or es- 
says: 

Bernardus Papiensis, "Summa de Matrimonio," 
"Summa de Electione ; " Tancred, "Summa de Sponsa- 
libus et Matrimonio/' and " Ordo Judiciarius; " Wil- 

I Ed. Thaner, 1874- • Ed. Laspeyret, i860. 



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55 



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liam of Durant (1296), called M Speculator," " Specu- 
lum Legatorum" " Speculum Judiciale" " Rationale 
Divinorum Ofiiciorum." T 

Some works are especially concerned with the papal 
power, which was, at times, rather insipidly defended. 
To this class belong: Joannes Parisiensis (+ r 3o6)» 
" Tractatus de Rcgia Potentate et Papali"; -^gidius 
Romanus (Colonna, + 1315), " De Excellentia Pon- 
tificatus/' "De Potestate Ecclesiastica libri tres," " De 
Regimine Principum"; Augustinus Triumphus 
(+1328), "Sumtna de Potestate Ecclesiastica"; Ro- 
deric Sancius de Arevalo (+ 1470), " Defensorium 
Status Ecclesiastici," " De Monorchia Or bis" (the Pope 
is the monarch of the whole universe) ; John a Tur- 
recremata (-f 1468), " De Potestate Papae et Concilii 
Generalis Auctoritate;" Thomas de Vio (Cajetan) 
(+ r 534)» " De Auctoritate et Potestate Rom. Pont.," 
" De Auctoritate C ' onciliorum." Of some interest are the 
works of Dominicus de Dominicis (+ 1478). " De Re- 
formationibus Romanae Curiae," " De Cardinalium Elec- 
tione et Legitima Creatione" etc. 9 



7 Edited, respectively, hy Wunder- 
lich, 1841, and Bergmann, 1842. 
■ Cfr. Scbolr, Publuuttk sur Zt* 



Philipps des Schotun. K.-R. Ab- 
hnndl. v. Stutx, 190J, 618. 
Cfr. Schulte, Qnelltn, H, pas- 



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SECTION 5 
POST-TRIDENTINE LITERATURE 



The reformation initiated by the Council of Trent was 
vigorously carried out by the later Popes, who proved 
themselves excellent legislators. The tendency of gravi- 
tation towards the centre became more accentuated. This 
is very noticeable in Canon Law. Besides this centraliz- 
ing tendency there are two other characteristics which 
single out this period from those preceding. Humanism 
invaded the realm of law on a side where it was particu- 
larly vulnerable by introducing historical criticism. This 
operation was no detriment to the science, but it might 
have proved dangerous in the hands of an unskilful sur- 
geon. It has produced works of great and lasting merit. 

Another innovation, less necessary and rather cumber- 
some, is the moralising strain now brought into Canon 
Law. This was a disadvantage because it obscured the 
character of the Church as a public society and made the 
law appear to be an appendix of the confessional. The 
moralists entered into the vineyard of Canon Law and — 
but melius est silere quant loqui. 

The following list may serve students especially in their 
selection of canonical books. The works may be divided 
into historico-critical writings, commentaries, and man- 
uals; those which, for one reason or another, are pre- 
ferred at the Roman Curia are marked with an asterisk. 

56 



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POST-TRIDENTINE LITERATURE 57 

a 

I. HISTORICO-CRITICAL WRITINGS 

Besides the authors mentioned above the following may 
be recommended : 

Card. John Baptist Pitra, O.S.B., "Juris Ecclesia- 
stici Graecorum Historic et Monumental* Rome, 
1864-68; " Analecta Novissima Spicilegii Sole sinensis'' 
Tusculi, 1885; L. Thomassin, " Vetus et Nova Eccles. 
Disciplina circa Beneficial Magontiaci, 1787; E. Loen- 
ing, Geschkhte des deutschen Kirchenrechts, 1878, 2 
vols, (still a standard work). 



■ 



2. commentaries 



Although not a commentary in the proper sense, yet 
as embracing almost the whole range of Canon Law, we 
must mention the works of the " Princeps Canonista- 
rum" 1 Benedict XIV, whose Opera Omnia (Prati, 
1839 ff.) are a rich source of information. 

A. Barbosa, Opera Omnia, Lugdun., 1660. 

C. S. Berardi, " Commentaria in Jus Eccl. Universum/' 
Taurini, 1766 (critical). 

De Angelis, " Praelectiones Juris Canonici" Rome, 

1877 ff- 

L. Ferraris, " Prompta BibUotheca Canonica" etc., 
various editions, the latest by J. Bucceroni, S.J., Romae, 
1885-99, 9 Vols., but with little improvement as to dates 
of the decisions of the S. Congregations. 

♦Card. Vincent Petra (-f 1747), " Commentarxa tn 
Constitutiones Apostolicas" Romae, 1705-1726, 5 Vols., 
besides " De S. Poenitentiaria A post oik a," 1712. 

E. Pirhing, S.J., " Universum Jus Canonicum" Dill- 
ingae, 1674. 



1 Cfr. Hurter, Nomtndator, 3rd «d-, Innsbruck, 1910. Vol. IV, col. 

1595 *iq. 



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58 INTRODUCTION 

Pichler, S.J., "/us Can. Univcrsum," Ingolstadii, 

1735- 

*Anacletus Reiffenstuel, O.F.Min., "Jus Canoni- 
cum Univcrsum" Antwerpiae, 1743, 3 Vols. 

*John Bapt. RlGANTI, u Commentary in Regulas, 
Constitutiones et Ordinationes Cancellariae Apostolicae," 
Romae, 1744 (an important work for the Rules of the 
Apostolic Chancery). 

Santi-Leitner, * Praelectiones Juris Canonici" Ra- 
tisbonae, 1898 f. 

*F. Schmalzgrueber. S.J., " Jus 'Eccl. Uniuersum," 
Romae, 1843 ff-» I2 Vols. 

♦Gonzalez Tellez, " Commeniaria perpetua in singu- 
los textus quinque lib. decretal. Gregorii IX," Lugduni, 

1673. 

Wernz, S.J., "Jus Decretalium" Romae, 1898 ff. 

John Bapt. Card. De Lcca (+1683), "Theatrum 
Veritatis et Justitiac " (a prolix work of motley content), 
Romae, 1671 f., 18 Vols. 



3. manuals 

Aichner, " Compendium Juris Eccl.," Innsbruck, 1895. 
J. Devoti, " Juris Canonici Universi Publ. et Privati 
libri quinque," Romae, 1803, 3 Vols, (still useful). 

F. Heiner (S.R.R. Auditor), " Katholisches Kirchen- 
rccht,' r Paderborn, 1897. 

Jos. Laurentius, S.J., " Institutiones Juris Ecclesia- 
stici," Freiburg, 1903. 

G. Phillips, " Kirchenrecht," 1845 ff., 8 Vols. 

Vox Scherer, " Handbuch d. Kirchenrechts," Graz, 
1886, 2 Vols, (incomplete, but very thorough and criti- 
cal). 



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POST-TRIDENTINE LITERATURE 59 

a 

J. R Schulte, "Lehrbuch d. Kath. Kirchenrechts," 

1863. 

S. B. Smith, "Elements of Ecclesiastical Law," 1891, 
3 Vols. These we have frequently consulted. 

It may be permitted to add a few Benedictine authors. 

Placidus Boekhn (-f- 1752), " Cotnmentarius in Jus 
Canonicum Universum," 1735 & (commentary-like and 
extensive ) . 

*Lud. Engel (+ 1674 at Melk in Austria), "Colle- 
gium Univcrsi Juris Canonici," Salisburgi, 1671-74; I D -» 
" Tractatus de Privilegiis et Juribus M onasteriorum" 
ibid. 

Martin Gerbert (S. Blasii, +1793), " Principia 
Theoriae Canonicae" 1758; " De Communione Potesta- 
tis Ecclesiasticae inter Sutnmos Ecclesiae Principe s et 
Episcopos" 1761 ; " De Legitima Ecclesiastica Potestate 
circa Sacra et Prof ana," 1761. 

Rob. Konig (+ 1713), " Principia Juris Can.'* Salis- 
bury, 1691-97. 
Maurus Sciienkl (■+- 181C), " Institutiones Juris 
Eccl. Gertnanlae Accommodatae," Ingolstadii, 1760; 
Ratisbonae, 1853. 

♦Francis Schmier ( -|- 1728), " Juris prudentia Cano- 
nic o-C Wilis," Salisburgi, 1716. 

Coel. Sfokdrati (+ 1696), "Regale Sacerdotium R. 
Pontifici Assertum," 1684; "Gallia Vindicate? S. Galli, 
1687. 

Greg. Zallwein (+ 1766), "Principia Juris Ecclesi- 
astici Universalis et Particul. Germaniae" 1763 (con- 
sidered one of the best manuals in its day). 



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CHAPTER V 

OLD AND NEW LAW 



Our gloriously reigning Holy Father Benedict XV, in 
his Bull of promulgation, refers to the Motu proprio 
" Arduum sane," which was issued by Pius X, March 17, 
1904, and gave rise to the present Code. In that memor- 
able pronouncement the late Pontiff stated the reasons 
which prompted him as the supreme Pastor of souls, 
who has the care of all the churches, to provide for a new 
codification of ecclesiastic laws, with a view " to put 
together with order and clearness all the laws of the 
Church thus far issued, removing all those that would 
be recognized as abrogated or obsolete, adapting others 
to the necessities of the times, and enacting new ones 
in conformity with the present needs." We leave it to 
the reader and the watchmen of Sion to judge whether 
this purpose has been achieved. A fair-minded and 
unbiassed critic will certainly acknowledge the juridical 
genius of H. E. Cardinal Gasparri, who bore the heaviest 
part of the burden, and of his zealous collaborators in 
getting up, within the short space of twelve years, a 
collection covering centuries of legislation and volumes 
of laws and commentaries. Those who will have to make 
practical use of the New Code will not fail to admire, 
first and above all, its brevity as well as the convenient 
arrangement of the matter and the clearness of the style. 
The canonist is grateful and in his heart will muse over 
Virgil's verse, " Redeunt Saturnia regna/' because, after 

60 



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OLD AND NEW LAW 61 

a long period of relative neglect, his office again becomes 
important and, we dare say, necessary. For although 
the advantages of the New Code are undeniable, a com- 
mentary is necessary in order to grasp the full meaning 
of the text. This is evident from the fact that the Code 
embodies "nova et veiera." 

The old laws must be explained, according to the gen- 
eral rules of interpretation indeed, but also in harmony 
with the traditional significance that can be gathered 
only from an acquaintance with bygone ages and authors. 
This is plainly stated in canon 6, which reads: 

11 The Code for the most part retains the discipline 
thus far in use, although it also offers opportune 
changes. Hence: i.° All laws, both universal or 
particular, which are opposed to the laws prescribed in 
this Code, are abrogated, with the exception of those 
particular laws for which express provision is made." 

The term law is to be taken in the strict sense of a 
written enactment. Privileges are not included, for they 
are special,, not particular, laws. The provision con- 
cerning particular laws must be expressly mentioned, at 
least in a general way. Cfr. Can. 1253 concerning feast- 
days, which is specially applicable to our country. 

" 2. Canons which state the old law unchanged, 
must be understood according to the authority of the 
old law and therefore according to the interpretations 
given by recognized authors. 

" 3. Canons which conform to the old law only in 
part, must be understood according to the old law as 
far as they agree with it ; in so far as they differ from 
it, they must be explained in their own light. 

" 4. When there is doubt whether an enactment of 
the Code differs from the old law, the latter must be 
upheld." 



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62 INTRODUCTION 

These rules not only establish the continuity of the 
law, but also offer a key to the interpreter. It is evident 
that a society which has lasted for centuries cannot en- 
tirely overthrow and set aside all of its old laws. 

Hence we find throughout the Code not only allusions 
to, but almost verbal restatements of, the old law. When 
the Code says " ex Integra," which we translate by w un- 
changed," this term must be taken in its substantial, not 
verbal meaning. Thus, concerning postulation, the Code 
(Can. i8o, § 2) is almost a repetition of the text of the 
Corpus Juris, though not ad verbum. 

When a canon is divisible, i. e., when it partly rehearses 
an old law, and partly gives new regulations, the inter- 
pretation and application must necessarily conform to 
the old law, as well as to the ratio legis and the wording 
of the newly enacted part, as shall appear more fully in 
the course of this Commentary. It were useless to set 
forth examples which occur in nearly every canon. But 
these rules show and clearly prove that even the new Code 
does not make the authority of the school superfluous or 
useless. 

" 5. All penalties not mentioned in this Code, of 
whatever denomination, spiritual, temporal, medicinal 
or vindictive (so called), whether ferendae or latae 
sententiae, are hereby abrogated." 

The " Apostolicae Sedis" of Pius IX (1868) had a 
similar purpose, *. e., to reduce the penal Code to a unit 
and to certain limits. The new Code embodies another 
attempt to simplify the penal law. 

" 6.° As regards the other disciplinary laws thus far 
in use, those that are neither explicitly nor implicitly 
contained in this Code must be held to have lost obliga- 
tory force, unless they are found in approved liturgical 



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books or are part of the divine law, either positive or 

natural." 

This is another guiding line along which the interpreter 
has to move. With the exception of natural and divine 
positive law and such rules as arc contained in the ap- 
proved liturgical books (the Pontifical, the Missal, the 
Roman Ritual, and the Ceretnoniale Episcoporum) all 
disciplinary laws made by human authority cease to be 
binding. The commentator may take illustrations from 
them, but is not allowed to confound them with the exist- 
ing law or to represent them as still binding. 

Having before our mind these wise rules, we shall, with 
God's help, endeavor to comply with them scrupulously 
and to follow the injunction of the S. C. Sem. ct Stud., 
Aug. 7, 1917, concerning the teaching of Canon Law. 1 

It remains to point out the division of the new Code. 
It consists of five books, doubtless as a remembrance of 
the Decretals. However, a mere glance at the Code will 
convince the student that the real principle of division is 
the threefold time-honored one according to personae, 
res, and actiones. The first book contains all that was 
embraced in the first book of the Decretals and is here 
called " general rules," whilst the fourth and fifth books 
form one subject, viz.: the actiones, with this sole differ- 
ence that procedure is separated from the penal code. 
The second book is entitled De Personis, and the third, 
De Rebus. But the ancient trilogy certainly is apparent 
in the new Code. 



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CONSTITUTION " PROVIDENTISSIMA " OF 

BENEDICT XV, PROMULGATING 

THE NEW CODE 

To Our Venerable Brethren and Beloved Sons the Patri- 
archs, Primates, Archbishops, Bishops, and Other Or- 
dinaries, and also to the Professors and Students 
of the Catholic Universities and Seminaries 

BENEDICT, BISHOP 

SERVANT OF THE SERVANTS OF GOD 
FOR A PERPETUAL REMEMBRANCE OF THE MATTER 

The most provident of mothers, the Church, enriched 
by her Divine Founder with all the notes befitting a per- 
fect society, from the very beginning of her existence, 
when, obeying the mandate of the Lord, she commenced 
to teach and govern all nations, undertook to regulate 
and safeguard the discipline of the clergy and the Chris- 
tian people by definite laws. 

In process of time, however, particularly when she 
achieved her freedom and grew greater and more wide- 
spread from day to day, she never ceased to develop 
and unfold the right of making laws, which belongs 
to her by her very constitution. She did this by pro- 
mulgating numerous and various decrees emanating from 
the Roman Pontiffs and Ecumenical Councils, as events 
and times suggested. By means of these laws and pre- 
cepts she made wise provision for the government of the 

64 



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clergy and Christian people, and, as history bears witness, 
wonderfully promoted the welfare of the State and civili- 
zation. For the Church was at pains not only to abro- 
gate the laws of barbarous nations and to reduce their 
rude customs to civilized form, but, trusting in the assist- 
ance of the divine light, she tempered the Roman law 
itself, that wonderful monument of ancient wisdom, 
which has deservedly been called " written reason," and, 
having corrected its defects, perfected it in a Christian 
manner to such a degree that, as the ways of public and 
private life tended to greater perfection, abundant ma- 
terials were supplied for the making of new laws both 
in the Middle Ages and more recent times. 

However, owing to changes in the circumstances of the 
times and the necessities of men, as Our Predecessor of 
happy memory, Pius X, wisely declared in his Motu 
proprio " Arduum sane" of March 17, 1904, Canon Law, 
no longer achieved its end with sufficient speed. For in 
the passing of centuries a great many laws were issued, 
of which some were abrogated by the supreme authority 
of the Church or fell into desuetude, while others proved 
too difficult to enforce, as times changed, or ceased to be 
useful to the common good. To these objections must 
be added that the laws of the Church had so increased in 
number and were so separated and scattered, that many of 
them were unknown, not only to the people, but to the 

most learned scholars as well. 

■ 

Moved by these reasons, Our Predecessor of happy 
memory, at the very beginning of his Pontificate, con- 
sidering how useful it would be for the restoration and 
strengthening of ecclesiastical discipline, if the serious 
inconveniences enumerated above were removed, decided 
to gather together and to digest with order and clearness 
all the laws of the Church issued down to our own day, 



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66 INTRODUCTION 

removing all that were abrogated or obsolete, adapting 
others as far as needful to the necessities and customs 
of the present time/ and making new ones according as 
the need and opportunity should direct. When, after 
mature deliberation, he put his hand to this most diffi- 
cult enterprise, he deemed it necessary to consult with 
the Bishops, whom the Holy Ghost has chosen to rule 
the Church of God, and to ascertain fully their views 
on the matter. Accordingly, he directed that, by letter 
from the Cardinal Secretary of State, all the Archbishops 
of the Catholic world should be invited to consult with 
their suffragan Bishops and other Ordinaries obliged to 
take part in Provincial Councils, and, after such consulta- 
tion, to report to this Holy See what parts of the existing 
ecclesiastical law in their opinion stood in need of change 
or correction.* 

Then, after having called upon numerous experts in 
Canon Law residing in Rome and other places to collab- 
orate in the undertaking, he commanded Our Beloved 
Son, Cardinal Gasparri, then Archbishop of Cacsarea, to 
direct, perfect, and, as far as necessary, complete the 
work of the consultors. He also instituted a Commis- 
sion of Cardinals, naming as its members Cardinals Dom- 
inic Ferrata, Casimir Gennari, Benjamin Cavicchioni, 
Joseph Calasanctius Vives y Tuto, and Felix Cavagnis, 
who, in accordance with the suggestions of Our Beloved 
Son Cardinal Gasparri, should diligently examine the 
proposed canons, and change, correct, and perfect them 
as their judgment directed. 8 When these five men passed 
away, one after the other, there were appointed in their 
places Our Beloved Sons Cardinals Vincent Vannutelli, 



1 Cfr. the Motu proprio "Arduum 2 Cfr. the Epistle " Percratum 

sane." mihi," of March 25, 1904. 

8 Cfr. the Motu proprio " Arduum sane." 



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Cajetan De Lai, Sebastian Martinelli, Basil Pompili, 
Cajetan Bisleti, William Van Rossum, Philip Giustini, 
and Michael Lega, who have admirably completed the 
work confided to them. 

Finally, after again consulting the prudence and au- 
thority of all his Venerable Brethren in the Episcopate, he 
directed that to them and to all the Superiors of the 
Regular Orders, who are accustomed to be summoned 
to an Ecumenical Council, should be sent copies of the 
new Code finished and corrected, before promulgation, 
in order that they might freely manifest their observations 
on the proposed canons. 4 

But since, meanwhile, to the sorrow of the whole Cath- 
olic world, Our Predecessor of immortal memory passed 
out of this life, it became Our duty, as soon as by the 
secret will of Providence we began Our Pontificate, to 
receive with due honor the views thus collected from 
every quarter of those who with Us form the teaching 
Church. Then finally we acknowledged in all its parts, 
approved, and ratified the new Code of the whole of 
Canon Law, which had been petitioned for by many Bish- 
ops at the Vatican Council, and begun more than twelve 
years ago. 

Therefore, having invoked the aid of Divine grace, and 
relying upon the authority of the Blessed Apostles Peter 
and Paul, of Our own accord and with certain knowledge, 
and in the fullness of the Apostolic power with which 
we are invested, by this Our Constitution, which we wish 
to be valid for all time. We promulgate, decree, and order 
that the present Code, just as it is compiled, shall have 
from this time forth the power of law for the Universal 
Church, and We confide it to your custody and vigilance. 

4Cfr. the Epistle " De Mondato," of March 30, 191a. 



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68 INTRODUCTION 

a 

But in order that all concerned may be able to have a 
thorough knowledge of the regulations of the Code before 
they begin to be binding, We ordain that they shall not 
come into effect until Pentecost day next year, {, 0., May 
19th, 1918. 

Notwithstanding all contrary regulations, constitu- 
tions, privileges, even those worthy of special and individ- 
ual mention, and notwithstanding contrary customs, even 
though they be immemorial, or whatever else may run 
counter to this Constitution. 

For no one, therefore, is it lawful willingly to contra- 
dict or rashly to disobey in any way this Our constitu- 
tion, ordination, limitation, suppression or derogation. 
If any one should dare to do so, let him know that he will 
incur the wrath of Almighty God and of the Blessed 
Apostles Peter and Paul. 

Given at Rome, from St. Peter's, on the Feast of Pente- 
cost of the year one thousand nine hundred and seven- 
teen, the third year of Our Pontificate. 
Peter Card. Gasparri, 

Secretary of State 

O. Card. Cagiano de Azevedo, 
Chancellor of the H. R. Church. 



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PROFESSION OF FAITH PRESCRIBED BY THE 

NEW CODE 

Ego N, firma fide credo et profiteor omnia et singula, 
quae continentur in symbolo Fidei, quo sancta Romana 
Ecclesia utitur, videlicet: Credo in unum Deum, Pa- 
trem omnipotentem, factorem caeli et terrae, visibilium 
omnium et invisibilium. Et in unum Dominum Iesum 
Christum, Filium Dei Unigenitum. Et ex Patre naium t 
ante omnia saecula. — Deum de Deo, lumen de lurnine, 
Deum verum de Deo vero. Genitum non factum, consub- 
stantialem Patri : per quern omnia facta sunt. Qui prop- 
ter nos homines, et propter nostram salutem descendit 
dc caclis. Et incarnatus est de Spiritu Sancto ex Maria 
Virgine, et Homo factus est. Crucifixus etiam pro nobis, 
sub Pontio Pilato: passus, et sepultus est. Et resurrexit 
tertia die, secundum Scripturas. Et ascendit in caelum : 
sedet ad dexteram Patris. Et iterum venturus est cum 
gloria iudicare vivos, et mortuos: cuius regni non erit 
finis. Et in Spiritum Sanctum, Dominum et vivificantem : 
qui ex Patre Filioque procedit. Qui cum Patre et Filio 
simul adoratur, et conglorificatur : qui locutus est per 
prophetas. Et Unam, Sanctam, Catholicam et Apo- 
stolicam Ecclesiam. Confiteor unum Baptisma in remis- 
sionem peccatorum. Et exspecto resurrectionem mor- 
tuorum. Et vitam venturi saeculi. Amen. 

Apostolicas et ecclesiasticas traditiones, reliquasque 
eiusdem Ecclesiae observationes et constitutiones firmis- 
sime admitto et amplector. Item sacram Scripturam 
iuxta eum sensum, quem tenuit et tenet sancta Mater 

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70 INTRODUCTION 

Ecclesia, cuius est iudicare de vero sensu et interpreta- 
tione sacrarum Scripturarum, admitto ; nee earn unquam, 
nisi iuxta unanimem consensum Patrum, accipiam et 
interpretabor. 

Profiteor quoque septem esse vere et proprie Sacra- 
menta novae legis a Iesu Christo Domino nostro instituta, 
atque ad salutem humani generis, licet non omnia singulis, 
necessaria, scilicet, Baptismum, Confirmationem, Eucha- 
ristiam, Poenitentiam, Extremam Unctionem, Ordinem 
et Matrimonium; illaque gratiam conferre, et ex his Bap- 
tismum, Confirmationem et Ordinem sine sacrilcgio rcitc- 
rari non posse. — Receptos quoque et approbatos Ecclesiae 
Catholicae ritus in supradictorum omnium Sacramen- 
torum sollemni administratione recipio et admitto. — 
Omnia et singula quae de peccato originali et de iustifica- 
tione in sacrosancta Tridentina Synodo definita et de- 
clarata fuerunt, amplector ct recipio. — Profiteor paritcr in 
Missa offerri Deo verum, proprium et propitiatorium 
Sacrificium pro vivis et defunctis; atque in sanctissimo 
Eucharistiae Sacramento esse vere, rcaliter et substan- 
tialiter Corpus et Sanguinem una cum anima et divinitate 
Domini nostri Iesu Christi, fierique conversionem totius 
substantiate panis in Corpus, et totius substantiae vini in 
Sanguinem, quam conversionem Catholica Ecclesia Trans- 
substantiationem appellat. Fateor etiam sub altera tan- 
turn specie totum atque integrum Christum, verumque 
Sacramentum sumi. — Constanter teneo Purgatorium 
esse, animasque ibi detentas fidelium sufTragiis iuvari. 
Similiter et Sanctos una cum Christo regnantes veneran- 
dos atque invocandos esse, eosque orationes Deo pro 
nobis offerre, atque eorum Reliquias esse venerandas. 
Firmiter assero imagines Christi ac Deiparae semper Vir- 
ginis, necnon aliorum Sanctorum habendas et retinendas 



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PROFESSION OF FAITH 71 

esse, atque eis debitum honorem ac venerationem imper- 
tiendam. — Indulgentiarum etiam potestatem a Christo in 
Ecclesia relictam fuisse, illarumque usum Christiano 
populo maxime salutarem esse affirmo, — Sanctam, Catho- 
licam et Apostolicam Romanam Ecclesiam, omnium Ec- 
clesiarum matrem et magistram agnosco, Romanoque 
Pontifici beati Petri Apostolorum Principis successori ac 
Iesu Christi Vicario veram obedientiam spondeo ac iuro. 
Cetera item omnia a sacris Canonibus et Oecumenicis 
Conciliis, ac praecipue a sacrosancta Tridentina Synodo 
et ab Oecumenico Concilio Vaticano tradita, definita ac 
declarata, praesertim de Romani Pontificis primatu et 
infallibili magisterio, indubitanter recipio atque profiteor, 
simulque contraria omnia, atque haereses quascunque ab 
Ecclesia damnatas et reiectas et anathematizatas, ego pari- 
ter damno, reiicio et anathematizo. Hanc veram Catho- 
licam Fidem, extra quam nemo salvus esse potest quam 
in praesenti sponte profiteor et veraciter teneo, eandem 
integram et inviolatam usque ad extremum vitae spiritum, 
constantissiroe, Deo adiuvante, retinere et confiteri, atque 
a meis subditis seu illis, quorum cura ad me in munere 
meo spectabit, teneri et doceri et praedicari, quantum in 
me erit curaturum, ego idem N. spondeo, voveo ac iuro. 
Sic me Deus adiuvet, et haec sancta Dei Evangelia. 



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PART II 
COMMENTARY 

BOOK I 
general rules 

Can. i 

Licet in Codice iuris canonici Ecclesiae quoque 
Orientalis disciplina saepe referatur, ipse tamen unam 
rcspicit Latinam Ecclcsiam, nequc Orientalcm obligat, 
nisi de iis agatur, quae ex ipsa rei natura etiam Orien- 
talem afficiunt. 

Though the discipline of the Oriental Church 
is often referred to in the Code of Canon Law, 
the Code itself regards only the Latin Church and 
does not bind the Oriental Church except in mat- 
ters which of their very nature concern also the 
latter. 



In other words, the new Code binds the Oriental 
Church only in so far as its dicipline is expressly men- 
tioned therein. 

This point was decided in 1907 by the Sacred Congre- 
gation of the Propaganda in a decree which touches upon 
the binding force of the Constitutions of the Holy See. 1 



1 Cf. Colltctanca P. F„ 1907, II, n. 1578. 
72 



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CANON 2 73 

This decree establishes that laws emanating from the 
Holy See are binding upon the Oriental Church, 

a) if they concern matters of faith or morals; 

b) if they contain matters connected with the divine 
or the natural law, e. g., the application of Holy Mass for 
the people at least sometimes during the year; 

c) if the laws themselves expressly state that they are 
meant to bind the Oriental Church. 

The Oriental Churches are distinguished from the 
Latin Church by their respective liturgical rites, 2 whilst 
in faith or dogma they are united with the Roman Pon- 
tiff. To the Oriental Church belong eight large groups 
with their respective subdivisions: the Byzantine Uniats 
with the Melchites, the Ruthenians, the Bulgarians, the 
Rumanians, the Italo-Greeks (in Calabria and Sicily), 
the Chaldees, the Copts, the Abyssinians, the Catholic 
Syrians, the Maronites, and the Armenians and Uniats of 
Malabar. The Oriental Catholics living in the U. S. re- 
main subject to their respective Church, so far as rite 
is concerned, but in disciplinary matters, v. g. t celibacy 
of the clergy, they follow the Latin Church. 

3. 
I- 

Can. 2 

Codex, plerumque, nihil decernit de ritibus et caere- 
moniis quas liturgici libri, ab Ecclesia Latina prohati, 
servandas praccipiunt in celcbratione sacrosancti 
Missae sacrificii, in administratione Sacramentorum et 
Sacramentalium aliisque sacris peragendis. Quare 
omncs liturgicae leges vim suam retincnt, nisi carum 

aliqua in Codice expresse corrigantur. 

- 

2 Cf. Cath. Encyclopedia, Vol. V, Latina (S. Poenit., y July, 1917, A. 
s. v. Eastern Churches. The Oii- Ap. S. r i9 J 7. ix . P- 399)- 



cutals also gain indulgences like the 



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74 GENERAL RULES 

The Code, furthermore, decrees nothing about 
the rites and ceremonies which the liturgical 
books approved by the Latin Church prescribe 
for the celebration of the most holy Sacrifice of 
the Mass, the administration of the Sacraments 
and sacramentals, and other sacred functions. 
Hence all liturgical laws retain their force unless 
expressly corrected in the Code. 

See Introduction, supra, pp. 60 sqq. 

Can. 3 

Codicis canones initas ab Apostolica Sede cum variis 
Nationibus conventiones nullatenus abrogant aut iis 
aliquid abrogant; eae idcirco perinde ac in praesens 
vigere pergent, contrariis huius Codicis praescriptis 
minixnc obstantibus. 

The canons of the Code in no wise abrogate or 
derogate from the agreements entered into be- 
tween the Apostolic See and different nations; 
these agreements therefore remain in full force, 
notwithstanding contrary prescriptions of the 
Code. 



This canon is evidently intended for those countries 
■which maintain a so-called diplomatic or juridical rela- 
tion with the Holy See. Where there is complete sep- 
aration between Church and State, this canon does not 
apply, and hence the United States and England are not 
directly affected. We say directly; for, if one of the 
countries in which the aforesaid separation prevails 
should acquire a territory, or part thereof, which had a 



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CANON 4 75 

concordat with the Holy See, it would be obliged to 
abide by the concordat until the case could be legally 
settled wilh the Apostolic See (Congregation of Extraor- 
dinary Affairs). 8 An instance of a peaceful settle- 
ment is that with the United States concerning the Philip- 
nine Islands. 



N 



Can. 4 

Iura aliis quaesita, itemque privilegia atque indulta 
quae, ab Apostolica Sede ad haec usque tempora per- 
sonis sive physicis sive rnoralibus concessa, in usu 
adhuc sunt nee revocata, integra manent, nisi huius 
Codicis canonibus expresse revocentur. 



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Rights otherwise acquired, as well as privileges 
and indults hitherto granted by the Apostolic See 
either to individuals or to organizations remain 
intact if they are still in use and have not been 
revoked, unless expressly revoked in the canons 
of this Code. 

The rights here mentioned are the so-called jura 
quaesita* i. e., the legally acquired subjective rights of a 
third person. For instance, a bishop has the right of ap- 
pointing one to a certain office; hence, though a corpora- 
tion (monastery) has the right of appointing one of its 
members, this appointee must be presented to the Ordi- 
nary. Indults arc faculties granted by the Holy See, e. g. t 



3 A concordat (conventio) is a there is no reason to relinquish that 

mutual agreement entered into be- notion. 

tween the Apostolic See and a State 4 Cf r. the saying: " Jus qtiaesi- 

regarding matters which concern lum fortius at quam iiii quaeren- 

both parties, and is of the nature of dum." Cf. Barbosa, Tractates Varii, 

a bilateral contract; cf. our Summa Axioma 135, ed. Lugd. 1660, p. 89. 



Juris Eecl. Publia, 1910, p. 138 ; ; 



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76 GENERAL RULES 

the triennial faculties. These remain unchanged unless 
the Code expressly abolishes them, and consequently all 
faculties obtained before the promulgation of the Code 
and not expressly abolished therein remain in vigor until 
they lapse. 

Can. s 

Vigentes in praesens contra horum statuta canonum 
consuetudines sive universales sive particulares, si 
quid em ipsis canonibus expresse reprobentur, tanquam 
iuris corruptelae corrigantur, licet sint immemorabiles, 
neve sinantur in posterum reviviscere; aliae, quae 
quidem centenariae sint et immemorabiles, tolerari 
poterunt, si Ordinarii pro locorum ac personarum 
adiunctis cxistiment eas prudenter submoveri non 
posse; ceterae suppressae habeantur, nisi expresse Co- 
dex aliud caveat. 

Such customs, whether universal or particular, 
as are now in vogue contrary to the prescriptions 
of these canons, if they are expressly reprobated 
by the canons, should be amended as corruptions 
of the law, even though they be immemorial, and 
should not be allowed to revive in future; others, 
which are of century-long duration and immemor- 
able, may be tolerated if the Ordinaries, with due 
regard to places and persons, consider that they 
cannot be prudently abolished; the rest shall be 
regarded as suppressed, unless the Code expressly 
provides otherwise. 



On privileges and customs see infra, under the respec- 
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Can. 6 

Codex vigentem hue usque disciplinam plerumque 
retinet, licet opportunas immutationes afferat. Itaque : 

i.° Leges quaelibet, sive universales sive particu- 
lates, praescriptis huius Codicis oppositae, abrogantur, 
nisi de particularibus legibus aliud cxpressc caveatur ; 

2.° Canones qui ius vetus ex integro referunt, ex 
veteris iuris auctoritate, atque ideo ex receptis apud 
probatos auctores interpretationibus, sunt aestimandi; 

3. Canones qui ex parte tantum cum veteri iure 
congruunt, qua congruunt, ex iure antiquo aestimandi 
sunt; qua discrepant, sunt ex sua ipsorum sententia 
diiudicandi ; 

4. In dubio num aliquid canonum praescriptum 
cum veteri iure discrepet, a veteri iure non est rece- 
dendum ; 

5. Quod ad poenas attinet, quarum in Codice nulla 
fit mentio, spirituales sint vel temporales, medicinales 
vel, ut vocant, vindicativae, latae vel ferendae senten- 
tiae, eae tanquam abrogatae habeantur ; 

6.° Si qua ex ceteris disciplinaribus legibus, quae 
usque adhuc vigucrunt, nee explicite nee implicite in 
Codice contineatur, ea vim omncm amisisse dicenda 
est, nisi in probatis liturgicis libris reperiatur, aut lex 
sit iuris divini sivi positivi sive naturalis. 



The Code for the most part retains the disci- 
pline hitherto in force, but makes some opportune 
changes. Thus : 

i.° All laws, whether universal or particu- 
lar, that are opposed to the prescriptions of this 
Code, are abrogated, unless some special provi- 
sion is made in favor of particular laws; 



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78 GENERAL RULES 

2. Those canons which restate the ancient 
law without change, must be interpreted upon the 
authority of the ancient law, and therefore in the 
light of the teaching of approved authors; 

3. Those canons which agree with the an- 
cient law only in part, must be interpreted in the 
light of the ancient law in so far as they agree 
with it, and in the light of their own wording in 
so far as they differ from the ancient law; 

4. When it is doubtful whether a canon 
contained in this Code differs from the ancient 
law, the ancient law must be upheld ; 

5. As regards penalties not mentioned in 
the Code, whether spiritual or temporal, medicinal 
or (as they say) vindictive, whether incurred by 
the act itself or imposed by judicial sentence, 
they are to be considered as abrogated; 

6.° If there be one among the other disci- 
plinary laws hitherto in force, which is neither 
explicitly nor implicitly contained in this Code, 
it must be held to have lost all force unless it is 
found in approved liturgical books or unless it is 
of divine right, positive or natural. 

This canon establishes the relation between the old 
and the new law of the Church, as explained in the Intro- 
duction to this Commentary, supra, pp. 60 sqq. 

Can. 7 

Nomine Sedis Apostolicae vel Sanctae Sedis in hoc 
codice veniunt non solum Rom anus Pontifex, sed 



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etiam, nisi ex natura rei vel sermonis contextu aliud 
appareat, Congrcgationcs, Tribunalia, Officia, per 
quae idem Romanus Pontifex negotia Ecclesiae uni- 
versalis expedire solet 

I By the term " Apostolic See " or " Holy See * 

in this Code is meant not only the Roman Pontiff, 
but also, unless a different meaning follows from 
the nature of the thing or the context, the Con- 
gregations, Tribunals, and Offices by means of 
which the Roman Pontiff is wont to transact the 
affairs of the universal Church. 



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TITLE I 
ON ECCLESIASTICAL LAWS 

DEFINITION AND NATURE 



An ecclesiastical law may be defined as " a stable ordi- 
nance in accordance with reason, promulgated by the 
legitimate authority for the common welfare of the 
Church." * It is evident that a law spells stability and 
should always be based upon the dictates of reason, which 
requires that circumstances of person, time, and place 
should be duly considered. 

Promulgation of ecclesiastical laws is necessary be- 
cause, and in so far as, the will of the legislator must, 
in some way or other, be manifested to his subjects. 8 

The mode of promulgation depends on the legislator 
himself, and consequently is subject to change. Formerly 
ecclesiastical laws were promulgated in the City of Rome, 
at the gates of St. John I-ateran, at St. Peter's, at the 
Apostolic Chancery and the Campo de* Fiori. The 
" Tametsi " had to be promulgated in every parish. Now 
an ecclesiastical law is sufficiently promulgated when it is 
published in the Acta Apostolicae Scdis. 



Can. 8 

S I- Leges instituuntur, cum promulgantur. 



1 Accommodated from the defini- the commentaries on tit II Deere- 
tion of law in general by St. tat) to assert that the validity and 
Thomas, S. Theol, la aae, qu. 90, obligatory force of laws depends on 
a. 4. their acceptance by the people or 

2 It would be subversive of au> clergy, 
thonty, as all canonists maintain <cf. 



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CANON 10 8l 

§ 2. Lex non praesumitur personalis, sed territoria- 
lis, nisi aliud constct. 

§ I. Laws go into effect when they are pro- 
mulgated. 

§ 2. A law is not presumed to be personal, 
but territorial, unless the contrary is evident. 

Can. 9 

Leges ab Apostolica Sede latae promulgantur per 
editionem in Actorum Apostolicae Sedis commen- 
tario officially nisi in casibus particularibus alius pro- 
mulgandi modus fuerit praescriptus ; et vim suam 
exserunt tantum expletis tribus mensibus a die qui 
A ctorum numero appositus est, nisi ex natura rei illico 
ligent aut in ipsa lege brevior vel longior vacatio spe- 
cialiter et expresse fuerit statuta. 



The laws enacted by the Apostolic See are 
promulgated by being published in the official 
Acta Apostolicae Sedis, unless some other mode 
of promulgation is prescribed in particular 
cases ; and they become obligatory three months 
after the date affixed to the number of the Acta in 
which they appear, unless the nature of the law 
requires that it take effect immediately, or unless 
the law itself especially and expressly fixes a 

shorter or longer period. 

■ 

Accordingly, a law published in the Acta Apostolicae 
Sedis bearing date of August l, 1918, goes into effect at 
midnight Oct. 31 to Nov. 1, 1918. 



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82 GENERAL RULES 

Can. 10 

Leges respiciunt futura. non praeterit a. nisi nomina- 
tirn in cis de praeteritis cavcatur. 

Laws affect the future, not the past, unless it 
is expressly stated therein that they are retro- 
active. 

A famous example of a retroactive law is the Constitu- 
tion " Consensus mutnus," of February 15, 1892, by 
which Leo XIII decreed that " henceforth in those places 
in which clandestine marriages are regarded as valid, 
all ecclesiastical judges who have cognizance of such 
matrimonial causes should forthwith cease to treat the 
intervention of carnal intercourse between betrothed per- 
sons as a presumption (iuris et de iure) of the marriage 
contract, and should not acknowledge or declare such 
union to be a lawful marriage." (Cfr. De Smet, Be- 
trothment and Marriage, tr. by W. Dobell, Vol. II, Bru- 
ges, 1912, p. 18.) 



LEGISLATORS IN THE CHURCH. 

Although the Code in its general rules does not men- 
tion the persons who are empowered to issue laws, it is 
safe to state that the following are ecclesiastical law- 

a 

givers : 

1. The Supreme Pontiff, who in matters subject to 
ecclesiastical legislation may issue laws binding the whole 
Church. This he may do without or with his counsellors, 
through official organs, or personally. 

2. The Bishops or Ordinaries, respectively, are en- 
titled to issue laws for their respective territories. Their 
laws must be in conformity with the general laws or go 
beyond them; but without special commission or facul- 



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CANON 10 83 

a 

ties Bishops or Ordinaries are not empowered to issue 

laws contrary to the general law. Their legislative ac- 
tivity may be exercised either in synod or without. 

3. Superiors of communities of regulars (with sol- 
emn vows), especially Generals, enjoy legislative power 
co-extensive with the power granted by the Supreme 
Pontiff and the Constitutions of their orders. 

Other superiors of religious communities, if not ex- 
empt, cannot be said to possess legislative power, properly 
so called, although they may issue statutes and precepts. 



OBLIGATION OF LAWS 

In order to determine the obligatory force of a law, it 
must be noticed, as we have already stated, that a dif- 
ference exists between divine (positive) and human laws. 
We may safely say that all moral laws which are based 
on the dictates of reason, have been laid down in Holy 
Writ. However, there are also positive divine laws 
which, per se t do not regulate the morality of acts, but 
determine the constitution of the Church and the Sacra- 
ments or the essentials of divine worship. These 
positive divine laws are out of the reach of human legis- 
lation and subject only to declaration or interpretation. 
They receive their obligatory force from divine law, nat- 
ural and positive, and bind all the members of the Church 
without further injunction. Such laws evidently have 
no territoral limits. Tt is otherwise with positive human 
laws, which admit of distinction. Hence § 2 of Canon 8 
(supra) says that a law must be presumed to be not per- 
sonal but territorial, unless the contrary is evident, a9, 
for instance, in case of the law prescribing the recital of 
the Breviary, which is manifestly personal. 

Considering the intrinsic force of the obligation im- 



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84 GENERAL RULES 

posed by ecclesiastical law, we must make a distinction 
between merely prohibitive and nullifying laws. A 
merely prohibitive law renders an act against that law 
illicit, and this may be stated in barren terms, affect- 
ing merely conscience ; or it may prohibit an act under 
penalty. In the former case we speak, with the old Ro- 
man jurisconsults, of a lex tninus quatn perfecta, in the 
latter of a lex perfecta, which has a penal sanction at- 
tached. 

There is another species of laws, called irritantes or 
mhabilitantes, which are nothing else but nullifying laws, 
viz., such as render an act committed contrary to them 
null and void {lex plus quam perfecta). 

Now the Code says : 

Can. ii 

■ 

Irritante9 aut inhabilitantes eae tantum leges haben- 
dae sunt, quibus aut actum esse nullum aut inhabilem 
esse personam expresse vel aequivalenter statuitur. 



Only those laws are to be considered as nulli- 
fying which state in express or equivalent terms 
that either the act is null and void or that a [cer- 
tain] person is incapable [of performing a valid 
act against the law]. 



Thus, e. g., the first degree of consanguinity renders 
a marriage null and void, whilst the attempted marriage 
of one in sacris is null by reason of the incapability of 
the person, expressly so declared. Equivalent means 
equal in force or significance so far as concerns the matter 
under consideration. 

(Canons 12, 13, 14, and 15, infra pp. 86 sqq.) 



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CANON 16 85 

The subject of nullifying laws is continued in Canon 

15- 

Can. 15 

Leges, etiara irritantes et inhabilitantes, in dubio 
iuris non urgent; in dubio autem facti potest Ordi- 
narius in eis dispensare, dummodo agatur de legibus in 
quibus Romanus Pontifex dispensare solet. 



If a doubt arises as to the law, nullifying laws 
are not urgent; if there is a doubt regarding a 
fact, the Ordinary is empowered to grant a dis- 
pensation, provided there is a question of laws in 
which the Roman Pontiff is wont to dispense. 

A dubiutn juris may arise from an imperfect knowl- 
edge of the existence of a law or its being in force. Such 
ignorance, of course, is not likely to be as common now 
as it was before the promulgation of the new Code. But 
even now, unless one is thoroughly acquainted with the 
law and the rules of interpretation, doubts may arise, 
without serious guilt, especially in cases or texts which 
refer to the old law. 

A dubium facti may be caused by insufficient cogni- 
zance of a fact or its circumstances. Under this category 
falls, e. g., the whole range of nullifying impediments. 
Ordinaries must acquaint themselves with the customs of 
the Roman Curia so as to know whether or not a dispen- 
sation may be granted in certain cases. 

Can. 16 



o 



§ 1. Nulla ignorantia legum irritantium aut inhabili- 
tantium ab eisdem excusat, nisi aliud expressse dicatur. 

§ 2. Ignorantia vel error circa legem aut poenam aut 
circa factum proprium aut circa factum alienum no- 



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86 GENERAL RULES 

torium generatim non praesumitur ; circa factum 
alienum non notorium praesumitur, donee contrarium 
probctur. 



■ 

9 



. § I. Ignorance of nullifying laws does not ex- 
cuse from their observance, unless the contrary is 
expressly stated. 

§ 2. Ignorance or error concerning a law or a 
penalty or a fact which touches one's own person, 
or a notorious fact which touches another, as a 
general rule is not to be presumed ; if, however, 
there is question of a fact regarding another, 
which is not notorious, ignorance or error may be 
presumed until the contrary has been established. 



This canon does honor to the juridical sense of the law- 
framers against a certain tendency of minimizing the 
valor of laws. A well known instance is that of the im- 
pediment of crime, which some authors wished to cover 
with the cloak of ignorance. 

In regard to § 2 several observations are to be made : 

a) Ignorance is the lack of necessary knowledge, 
whereas error is a state of mind approving falsehood for 
truth. The former is negative, the latter positive and 
hence more obnoxious, but perhaps also less imputable. 

b) A notorious fact is one which is publicly known 
and committed under circumstances that cannot be ex- 
cused by any artifice (tergiversation) or aid of law (cf. 
can. 2197). 

c) Presumption is anticipating a judgment, or forming 
a judgment from probable arguments and conjectures. 
Hence our Code defines presumption (a means of de- 
fence, but may here serve as a definition in law) as "a 



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cilium vcl quasi-doxnicilium habent et simul actu com 
morantur, firmo praescripto can. 14. 

a 

§ 1, General laws bind all for whom they are 
given, everywhere. 

§ 2. Laws given for a particular territory 
bind only those for whom they are given and who 
have a domicile or quasi-domicile in that terri- 
tory and actually reside therein, except as noted 

s 

in Can. 14. 

A general law (which term here appears to mean 
universal law) is one given for the entire Church and all 
its members, as, e. g. t yearly confession, hearing Mass, 
etc. 

Particular laws arc limited to the territory for which 
they are given, for instance, the law governing the 
election of bishops in the U. S., or laws made by provin- 
cial councils and diocesan synods. Particular laws sup- 
pose residence in the territory for which they are made, — 
residence conditioned by domicile, which the present 
canon limits to domicile proper and quasi-domicile. 
Domicile proper, according to the Roman law/ which 
has been adopted in this matter by canonists, is a fixed 
habitation in a certain place (municipality, parish) with 
the intention of staying there always. Hence actual resi- 
dence, as manifested by the purchase or leasing of a house 
for an indefinite time, and the intention to remain in 
that place permanently, are signs of a true domicile. 
Now-a-days such fixed habitation is rare in large cities, 



p 



7 Cf. I. 7. Cod, lust, X, 10 de non ait discessurus, si nihil avocet, 

incolis: " habere domicilium non unde cum profecfus est, peregrinari 

ambigitur, ubi quis larem (houic- videtur; quodsi rediit, peregrinari 

gods) rerumque ac fortunarum sua- jam destitit." 
rum summara constituit, unde rursus 



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90 GENERAL RULES 

though frequent enough in farming districts. It is there- 
fore entirely reasonable that a quasi-domic He should be 
admitted as meeting the requirements and order of law. 
This is established by actual residence in a certain parish 
or municipality with the intention of remaining there for 
the greater part of a year. This intention may be 
presumed if a person stays at least six months in the 
same place. 8 The distinction therefore between domicile 
and quasi-domicile consists in a difference of intention 
{animus), domicile requiring a perpetual, or at least an 
indefinitely protracted sojourn, whilst quasi-domicile may 
be established by a residence of six months. This quasi- 
domicile is acquired from the first day of residence if 
the person concerned can be proved to have had the in- 
tention of remaining there for the time stated. 

This canon does not consider the monthly stay (can. 

in 

1097) peculiar to the matrimonial celebration. 

The expression: "For whom they are given" (can. 
13, § 1 ) calls for special attention. Laws given for lay- 
men do not invariably apply to the clergy, and vice versa. 
Neither do all the laws intended for the secular clergy 
eo ipso bind the regular clergy; nor are the penal laws 
intended for the clergy meant for bishops and cardinals. 

Some peculiarities are attached, by reason of laws 
being per se territorial, to foreigners {peregrini), 1. e. t 
such persons as have for the moment relinquished their 
domicile or quasi-domicile, although they retain it (can. 
91 ) . Of these can. 14 treats as follows : 



Can. 14 
§ 1. Peregrini: 

l.° Non adstringuntur legibus particularibus sui 
territorii quandiu ab eo absunt, nisi aut earum trans- 
act Reifienstuel, 1. II, tit. 2, nn. 17 ff- 



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CANON 14 91 

□ 

gressio in proprio territorio noceat, aut leges sint 
personalcs ; 

2. Neque legibus territorii in quo versantur, iis ex- 
ceptis quae ordini publico consulunt, vel actuum sol- 
lcmnia determinant ; 

3. At legibus gencralibus tenentur, etiamsi hae suo 
in territorio non vigeant, minime vero si in loco in quo 
versantur non obligent. 

§ 2. Vagi obligantur legibus tarn generalibus quam 
particularibus quae vigent in loco in quo versantur. 



§ 1. Strangers: 

i.° Are not obliged to observe the particular 
laws of their own territory while they are absent 
therefrom, unless non-observance of these laws 
should prove detrimental in their own territory, 
or unless the laws are personal. 

2. Neither are they bound to observe the par- 
ticular laws of the territory in which they are 
sojourning, with the exception of those that con- 
cern the public welfare or legal formalities. 

3. General laws they must observe, even 
though these laws are not enforced in their home 
territory ; they are not bound to observe general 
laws if these laws are not binding in the place 
where they sojourn. 



There is little to be said concerning the first clause. 
Some examples may illustrate the case. There is, e. g., 
the law binding every Catholic to support his pastor. 
If one is absent when the pew-rent is due, he is not, on 
account of his absence, free from the obligation of paying 



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92 GENERAL RULES 

the same, because such an excuse would be detrimental 
to discipline. A bishop's obligation of applying Mass at 
stated times is incumbent on him even during his absence 
from the diocese, because it is personal. 

The second clause concerns the particular laws of the 
territory in which one sojourns and provides that what- 
ever is connected with the public welfare or concerns legal 
formalities, must be observed by strangers (peregrini) . 

The Code does not mention scandal, although can- 
onists give that as a reason for the obligation of observing 
particular laws. The omission is probably due to the fact 
that scandal may negatively be reduced to considerations 
of public welfare. An instance may be taken from a par- 
ticular diocesan statute concerning the frequenting of 
dramshops, which in some dioceses is forbidden under 
suspension, whilst in other dioceses no such sanction is 
attached. 

Formalities (solletnnia) are outward details which 
must be observed in order to make an act legal. These 
are partly civil, e. g. } in contracts and last wills, and 
partly pertain to proceedings in the episcopal court. 

The last clause, No. 3, touches upon general laws. 
An example may be furnished by the ten general holy- 
days of obligation (can. 1247), of which only six are 
observed in the United States. An American travelling 
in countries where the ten holydays are kept, must ob- 
serve them. A European, on the other hand, sojourning 
in this country, may conform himself to our custom. 

Section two added to our cannon concerns the vagi, i. e. t 
such as possess neither domicile nor quasi-domicile. 
They are obliged to observe both the general and the par- 
ticular laws in effect at the place where they are staying. 
This regulation is somewhat stricter than usually ac- 

9 A stricter view is taken by Suarez, De Leg. Ill, cc 3a i. 



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CANON 17 93 

cepted by commentators. Yet it is in keeping with the 
civil law and is really nothing else but the consistent 
application of the forum competeiis. w 

INTERPRETATION OF LAWS 

By interpretation we mean an explanation of the will 
of the legislator taken from the wording of the text. 
As the Roman emperors issued interpretations of ob- 
scure texts, 11 so did the popes, first and above all in mat- 
ters of faith, but also, especially after authentic collec- 
tions had been published, in disciplinary matters. The 
Council of Trent decreed that authentic interpretations 
should be given by the authority from which the law 
emanated. The S. C. Council was especially charged with 
interpreting the Tridentine decrees. Besides as the juris- 
consults, too, rendered decisions or explanations, so did 
the canonists proffer their explanations, which at times 
were sought for, or at least accepted, by the Roman Court. 

Thus we have a twofold interpretation, authentic and 
private. An authentic interpretation 12 proceeds from 
the maker of the law. 



p 



Can. 17 

§ 1. Leges authenticae interpretatur legislator eiusve 
successor et is cui potestas interprctandi fucrit ab eis- 
dem commissa. 

§ 2. Interpretatio authentica, per modum legis ex- 
hibita, eandem vim habet ac lex ipsa ; et si verba legis 
in se certa declaret tantum, promulgationc non eget et 
valet retrorsum; si legem coarctet vel extendat aut 



10 Cfr. c 20, X, II, a de foro 11 Blackstone-Coolej, '. c, I, p. 

compet. and the commentators on the 58. 

same, for instance. Reiffenstuel, II, 12 Authentic from the Greek 

a, n. 44 f.; Engel, h. t, n. ix. aMivrty, means *elf -authorized, 

original, authoritative. 



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94 GENERAL RULES 

dubiam explicet, non rctrotrahitur et debet pronmlgari. 

§ 3. Data autem per rnodum sentcntiae iudicialis aut 

resenpti in re peculiar!, vim legis non habet et ligat 

tantum personas atque afficit res pro quibus data est. 

§ I. Laws are authentically interpreted by the 
legislator or his successor, or by those to whom 
the power of interpretation has been given by 
either the legislator or his successor. 

§ 2. An authentic interpretation, given in the 
form of a law, has the same force as the law 
itself; if it is merely a declaratory interpretation, 
it needs no promulgation and its obligatory force 
goes back to the day when the law itself was 
promulgated; but if the interpretation is restric- 
tive or extensive or settles a doubt, it is not retro- 
active and requires to be promulgated. 

§ 3. If an interpretation is given in the form 
of a legal judgment, or of a rescript in a spe- 
cial case, it has not the force of law, but binds 
only those persons and affects only those matters 
for whom or for which it is given. 

As an authentic interpretation can be given only by the 
lawgiver or his successor and by those to whom the power 
of interpretation is committed by the lawgivers, the Pope 
and the Roman Curia (congregations, tribunals, offices), 
are the authentic interpreters of all those laws which pro- 
ceed from the Sovereign Pontiff, whilst the Bishops or 
their successors are the interpreters of their own laws. 

The interpreter may be in a position where he has 
either to extend the law or restrict it. He extends by 



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CANON 17 95 

interpretation if he applies the wording or text to cases or 
persons not mentioned in the law or not included in the 
original intention of the lawgiver, although the exten- 
sion is not against the lawgiver's will ; 13 for instance, 
exemption or papal enclosure to religious without sol- 
emn vows. 14 



A restrictive interpretation takes place when the law is 
limited to fewer persons or cases than the wording and 
the mind of the legislator would seem to indicate, 18 e. g., if 
the people are interdicted but the clergy is not included. 
Besides doubts may arise, e. g. in rubrics, which must be 
solved. And, lastly, there may be required a merely 
comprehensive (declaratory) explanation, viz., one which 
explains the law literally, but in more obvious terms, by 
substituting other words. 

The Code (can. 17, § 2) says that an authentic inter- 
pretation of a law is of equal force with the law itself 
and has the same binding power; and if it be a merely 
declaratory interpretation, it needs no promulgation and 
its obligatory force goes back to the date of the pro- 
mulgation of the law itself. An interpretation that is ex- 
tensive or corrective (restrictive), on the other hand, must 
be promulgated and is not retroactive. 

There is, however, another authentic interpretation pos- 
sible, viz., one demanded by parties directly interested. 
It may happen, for instance, that a matrimonial case, or 
a case of precedence, must be decided by way of inter- 
pretation. This is done by a so-called judiciary interpre- 
tation, rendered by a legitimate judge (can. 17, § 3). 
Evidently such an interpretation binds only the parties 



11 Cfr. c. 3, 6°, III, 14. nie rcstrictio legts eo tendit, ut men- 

14 Suarez, J. e., VI, cc a f. ; tern ipsam legiilalorio ad pauciora 
Reiffenstuel, I, 2, n. 370 f- coarctet, quam verba vel ratio legil" 

15 Saurez, /. c. VI, 5, 1 : " Om- prae sc ferrc videntur." 



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96 GENERAL RULES 

concerned and in the matter decided, and outsiders are 
not affected thereby. 

Private interpretation, viz., one given by jurisconsults 
not commissioned by the lawgiver, or by expert canonists 
(doctors), must be made in conformity with certain rules 
which are necessary for the right understanding of ec- 
clesiastical — in fact of all — law. These rules are, of 
course, generally obeyed also by the authentic interpre- 
ters, but they are of importance especially in private 
interpretation and for those who wish to read and study 
Canon Law rightly. These rules are briefly the follow- 
ing: 

Can. 18 

Leges ecclesiasticae intelligendae sunt secundum 
propriam verborum significationem in textu et con- 
textu considcratam ; quae si dubia et obscura manserit, 
ad locos Codicis parallelos, si qui sint, ad legis finem 
ac circumstantias et ad mentem legislatoris est recur- 
rendum. 



Ecclesiastical laws must be understood accord- 
ing to the proper meaning of the words consid- 
ered in their context; if the meaning remains 
doubtful and obscure, recourse must be had to 
parallel texts in the Code, if there are any, to the 
purpose of the law and the circumstances sur- 
rounding it, and to the mind of the lawgiver. 

Ecclesiastical laws must be interpreted in the light of 
their wording, as borne out by the context. Hither be- 
long various rules culled from the Roman and the Canon 
Law : " Ubi verba non sunt ambigua, non est locus in- 
terpretation* ; " ia " Verba sunt intelligenda secundum 

m L. 25, Dig. 32 delegate et fidei-com. (ed. Mommsen, 190a, p. 445). 



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CANON 18 97 

propriam significationem, 1 ' i. e., in their usual and com- 
mon signification;" "Verba generalia generalitcr sunt 
sumenda," and " Ubi lex non distinguit, neque nos dis- 
tinguere debemus." 1B 

The context, too, must be considered, for it may be 
useful to compare words or sentences in the order and 
connection which they have with one another. 

When the terms are doubtful and obscure, the inter- 
preter must have recourse to parallel texts of the Code, 
and study the purpose and circumstances of the law and 
the mind of the legistator. Parallel texts are such as 
have an affinity with the subject or are expressly related 
to the same. Here the rule holds good: " De similibus 
idem est judicium." 18 Note, however, that the simi- 
larity must bear on the point at issue. 

The purpose or end of the law must be regarded in 
such a way that the interpretation really effects the scope, 
hence the rule : u Certum est, quod is committit in legem, 
qui legis verba complectens, contra legis nititur volunta- 
tem." The scope is sometimes, especially in long de- 
crees, premised in the preamble, which may then serve 
as a guide to the interpreter. 

The circumstances surrounding a law are either his- 
torical, i e., facts which prompted the law, e. g., the re- 
moval of a parish priest, or real, i. e., actual needs and 
reasons of time and person. 

The mind of the legislator must, of course, first and 
above all be deduced from the words of the law. Cir- 
cumstances, context, subject, etc., also help to disclose 
the mind of the legislator, as well as the ratio legis, 
which is called the soul of the law. Hence the rule, 

m 

a 

IT RcifFcnstucl, I, a, 390 ff.; 18 Cf. Suromarium ad I, 8, Dig., 6, 

Blackstone-Cooley, /. c, I, p. 59. a de Publicians. 

lit Cfr. can 701 with can. 106; c. 2, X, J, 7; e. 3, X, I. 2. 



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98 GENERAL RULES 

" Non debet intentio verbis deservire, sed verba inten- 



tioni." 30 



But we must guard against the assumption that the 
intention of the interpreter may be carried into the 
text. Hence if all the means so far enumerated fail in 
discovering the true mind of the legislator, nothing is left 
but to make direct inquiry by petitioning the competent 
authority. Therefore we sometimes read : " Iuxta men- 
tem," and the " mens " is set forth explicitly ; but some- 
times it must be guessed at, as said before. 

Can. iq 

Leges quae poenam statuunt, aut liberum iurium 
exercitium coarctant, aut exceptionem a lege continent, 
strictae subsunt interpretation!. 

All penal laws as well as those which restrict 
the free exercise of rights or embody an excep- 
tion to the law, are subject to strict interpretation. 

The first clause of this canon is contained in the well 
known rule XV in Sexto : " Odia restringi, favores con- 
venit ampliari," and rule 49, I. C. : " In poenis benignior 
interpretatio est facienda." Such an interpretation is 
neither extensive nor restrictive, but merely comprehen- 
sive ; but an explanation which simply negatives the 
penalty is no interpretation. Strict interpretation clings 
to the text, and pays due regard to the mind of the legis- 
lator, but mitigates the rigor of the law as far as the ratio 
legis will permit. What is meant by restricting the free 
exercise of rights is best understood by the example of 
the Ordinary exercising his rights as diocesan in appoint- 
ments, etc. 

Exceptions from laws may be either privileges or fa- 

20Cfi. c. 11. C. 22, q. 5. 



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CANON 20 99 

vors of a personal nature, or particular or special laws, 
which latter are called exorbitantes?* i. e., running beyond 
the sphere of general or common law. For instance, a 
private oratory is a favor, exemption is a special law, 
and all these are subject to strict interpretation. 

Can. 20 
Si certa dc re desk expressum pracscriptum legis 
sive generalis sive particularis, norma sumenda est, nisi 
agatur de poenis applicandis, a legibus latis in simili- 
bus ; a generalibus iuris principiis cum aequitate 
canonica servatis ; a stylo et praxi Curiae Romanae ; a 
communi constantique sententia doctorum. 

If a general or a particular law contains no defi- 
nite prescription concerning a case, unless there 
is question of applying a penalty, the rule for 
deciding such a case must be taken from laws 
given in similar cases, from the general principles 
of Canon Law based on equity, from the method 
and practice of the Roman Court, or from the 
common and constant teaching of approved 
canonists. 

It is evident that a lawgiver cannot foresee or anticipate 
all the cases that may arise in practice in connection with 
his law. Hence something is always left to private judg- 
ment. Now there are four sources from which private 
judgment may draw aid in solving exceptional cases. 
They are : 

1. The "usus forensis " or " auctoritas rerum similiter 
iudicatarum." This is nothing else but the norm of cus- 
tomary procedure and decisions previously rendered in 

2i Cf. c. 11, C 22, q. 5. 



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too GENERAL RULES 

cases similar to the one in dispute. Although such de- 
cisions, especially if they have emanated from the Roman 
tribunals, must be received respectfully, and may be fol- 
lowed securely, yet their force does not extend so far 
as not to admit of a contrary verdict if the reasons arc 
strong enough to upset former decisions. 22 

2. The second means of deciding cases is recourse to 
general legal principles based on the equity of Canon Law. 
That equity is a means of practical interpretation and ap- 
plication is evident, for reason dictates that, if a law is 
deficient in a particular case, it should be applied accord- 
ing to the principles of law, indeed, but with a human 
feeling. 23 

The principles, of course, must be taken from Canon, 
not from civil law. It is surprising that the Code does 
not refer to civil laws at all, except in so far as concordats 
arc concerned. Hence in interpreting the Code it would 
be useless to refer to civil laws, and we merely note the 
fact that there is no palpable trace in the New Code of 
" canonized " civil laws, i. e. r civil laws formally sane- 
tioned by the Church. On the other hand it is plain that 
just laws issued by the civil power are not spurned by the 
ecclesiastical authorities but accepted and proposed as 
binding the members of the Church. 

3. The third means of applying the law is by render- 
ing a decision in default of an existing law in accord- 
ance with the stylus curiae. From remote antiquity, as 
the " Liber Diurnus " 2 * shows, the Roman Court or Apos- 
tolic Chancery employed a uniform, nay almost stereo- 
typed mode of expediting affairs. This " stable method 



..-. 



22 Boekhn, Comment, in Jus Uni- quam strict! iuris rationem; " — but 
vtnum, 1735. J» 4. n. 39. this feeling must not be indulged too 

ZJL. 8, Cod. lutl., Ill, 1: far, lest it destroy all law. Black- 



" Placuit in omnibus rebus praeci- atone Cooley, /. c. I, p. 61, 
pu am esse iustitiae aequitatisque M Ed. Th. Siekel, 1889. 



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CANON 21 ioi 

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of proceeding in ecclesiastical causes and dispatching 

apostolic documents" is called the style of the Roman 
Curia. It partakes of the nature of a law for the differ- 
ent tribunals and the parties engaged in litigation before 
them.* 5 

4. The last mode of propounding or expounding a case 
is the authority of the school. That the professional 
canonists have exerted a decided influence since the time 
of Gratian, not only upon decisions but on lawmaking it- 
self, is well known. The u school " itself distinguished a 
threefold class of opinions: communissima, when all au- 
thors agreed; communis, when several weighty authors 
held the same opinion ; controversa, when there was dis- 
agreement among canonists. za And it was always re- 
garded as rash to deviate from the opinio communissima. 
The Code mentions the M common and constant opinion 
of the school as a guiding principle in deciding a doubt- 
ful case, and justly so because such a consensus is suffi- 
cient for moral certainty. For the rest, even the opinio 
communissima does not constitute law. 

Applying these rules, and especially that of equity, 
one may persuade himself that a certain law does not ap- 
ply to himself under given circumstances. This may be 
true. However, since the law is intended for the com- 
mon welfare, it is necessary to consider the rule laid down 
in canon 21. 



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Can. 21 

Leges latae ad praecavendum periculum generate, 
urgent, etiamsi in casu peculiari periculum non adsit. 

Laws given in order to guard against a common 

35 Rigznti, Comment, m Reg. 26 Schulte, Quelle*, i860, I, p. 

Cane, Ap., 45. fi »« n. 96- 258. 



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103 GENERAL RULES 

danger must be observed even if that danger in a 
particular case is absent. 

The term "generate" here has reference to the com- 
munity or body of the faithful, because a term extends 
to the species contained in the genus. 27 However, the 
term may also be taken as comprising a certain class of 
members, e. g. t the clergy, or the laity. Thus the law of 
reading forbidden books binds all, the law of guarding the 
privilegiufn fori, the clergy only, etc. 

cessation of laws 

Can. 22 

Lex posterior, a competenti auctoritate lata, abrogat 
priori, si id expresse edicat, aut sit illi directe contraria, 
aut totam dc integro ordinet legis prioris materiam; 
sed fir mo pracscripto can. 6, n. i, lex general is nulla - 
terms derogat locorum specialium et personarum sin- 
gularium statutis, nisi aliud in ipsa expresse caveatur. 

A later law, given by competent authority, 
abrogates an earlier one if it expressly says so, 
or if it is directly contrary to it, or re-orders 
the subject-matter of the older law; however, 
Can. 6, No. i of this Code remains in full force, 
that is to say, a general law in no wise derogates 
from the laws in force in particular places or with 
regard to particular persons, unless the contrary 
is expressly provided therein. 



27 Cf. Barbosa, Traclatut Varii, is, of course, more urgent when 

Axioms iofi: *' Generalis dispositio there is necessity of professing the 

Doines species eomprehendit*' faith or maintaining its unity or 

Suarez, De Leg. t III, c. 30. This obeying superiors. 



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CANON 23 103 

In other words, an existing law loses its force if a new 
law is made by which it is abolished. This may be done 
(a) by an act of explicit abrogation, or (b) in virtue of 
the prescriptions of the new law being directly opposed 
to that of the old, or (c) if the new law reorders the en- 
tire subject-matter of the old. 

a) Papal constitutions sometimes contain the clause, 
" hac immutabili et in perpetunm valitura constitutione." 
This is merely an emphatic assertion that the law should 
not be recalled without reason ; it does not bind the Pope's 
successor, because " par in parem non habet imperium." aa 
If the successor expressly mentions his predecessor's 
law as abolished, the latter loses its force. 

3! 

b) A later lawgiver may issue a law about a matter 
(e. g. matrimonial) which runs contrary to former laws ; 
hence the rule, " Lex posterior generalis derogat legi 
priori generali." 

c) A thorough overhauling of the subject-matter has 
the same effect, for instance, in the removal of parish 
priests. 

However, a general law does not abrogate a particular 
or special law unless the intention of the lawgiver is 
clearly expressed to that effect in a special clause. Such 
a clause would be, " non obstantibus quibuscunque etiam 
speciali vel specialissima mentione dignis." 2B In the 
canon quoted the Code ordains that all particular and 
special laws remain in force unless the contrary is ex- 
pressly stated. Thus, e. g. f the particular law on episco- 
pal nominations in the U. S. remains in force even under 
the new Code. 

Can. 23 

In dubio revocatio legis praeexsistentis non prae- 

2» Cfr. c. 20, X, I, 6 de elect. diet XV prefixed to the Code, supra, 

« Cfr. the Constitution of Bene- pp. 64 sqq. 



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104 GENERAL RULES 

sumitur, sed leges posteriores ad priorcs trahendae 
sunt et his, quantum fieri possit, conciliandae. 

Where there is doubt whether or not a law has 
been revoked, [by the Code or by another general 
law], it may not be presumed that the law has 
been revoked, but the old law should be compared 
with the new, and both made to harmonize, as far 
as possible. 

This canon expresses the law of continuity in the legis- 
lation of the Church. It would be unwarranted to as- 
sume — as has, strangely enough, been done — that the 
new Code came into being like a Deus ex machina and 
that an insurmountable wall is now erected between the 
Corpus Juris Canonici (in a wider sense) and the Code. 
The sources (fontes) quoted will show the continuity of 
legislation. 

Can. 24 

Praecepia, singulis data, eos quibus dantur, ubique 
urgent, sed iudicialiter urged nequeunt et cessant reso- 
luto iure praecipientis, nisi per legitimum documentum 
aut coram duobus testibus imposita fuerint. 

"^ 

Precepts given to individuals oblige those for 
whom they are given, everywhere, but they can- 
not be juridically enforced, and cease to bind 

a 

when the lawgiver loses his authority, unless in- 
deed they were imposed by a legal document or 
in the presence of two witnesses. 

- 

A precept (command, injunction), therefore, differs 
from a law, in as far as it "cleaves to the person to 



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CANON 24 ios 

whom it is given" (ossibus inhaeret) and ceases with 
the authority or office of the one who gave it. Hence if 
an Ordinary has given a precept so to a clergyman, that 
precept does not bind after the death or resignation of 
the Ordinary, unless the precept was given peremptorily 
by way of an official document (not merely a paternal let- 
ter) or in the presence of two witnesses (examiners). 

SO Cf r. for in.'.t can. 2177, against eoncubinarii. 



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TITLE II 
CUSTOM l 

Logically the Code now proceeds to deal with that other 
source of legal obligation known as Custom. Custom 
(consuetudo) generally speaking is a " law introduced by 
uniform and constant usage of the people with the con- 
sent of the legitimate power/' Two elements, therefore, 
constitute the essence of a customary law : a material 
one, which consists of a certain number of repeated 
acts, and a formal one, which is the consent of the legis- 
lator. Canon 25 asserts that an ecclesiastical custom 
obtains its obligatory force solely from the consent of 
ecclesiastical authority. 



Can. 25 

Consuetudo in Ecclesia vim legis a consensu compe- 
tentis Superioris ccclesiastici unicc obtinet. 

An ecclesiastical custom derives legal force 
solely from the consent of the ecclesiastical su- 
perior. 

c 

The word unice in the text clearly refers to consent. 

The Code wisely abstains from determining the nature 
of the consent required. 

Consent may be express, i. e., given by words or con- 
clusive signs explicitly approving a custom ; or tacit, 

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< 

lCfr. title IV of the Decretals andthf commentators thereon. 

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CANON 25 107 

given by the fact that the lawgiver, though aware of the 
custom and in a condition lo oppose it. does not contra- 
dict ; or finally, legal, which is nothing else but the will of 
the legislator supposedly permitting a custom. The ma- 
jority of canonists teach that legal consent suffices 
for introducing a custom. 2 The fact that customs have 
been introduced which the sovereign Pontiffs at first ig- 
nored * and afterwards accepted, seems abundant proof 
for that opinion. 

That legal consent is required for the validity of a cus- 
tom follows from the nature of the latter as a law ; a law 
must proceed from legitimate authority. 

As to the material element or repeated acts, these 
must bear the character of usage, and hence be frequent, 
public, and uniform. Frequency supposes more than one 
act, at least in common parlance. They must be public 
because they supply the formal act of promulgation ; and 
uniform in order to demonstrate the conviction of the 
people. 4 This latter quality (uniformity) calls for an- 
other requisite, vis., voluntariness. The acts constitut- 
ing a custom must be voluntary, for the people, in order 
to create or show the persuasio juris, must be free of in- 
trinsic and extrinsic coercion, — in other words, they must 
not be under the impression as if they were bound to ob- 
serve the custom in question because they falsely believe 
it to be a law.* Hence the intention of obliging them- 
selves is necessarily included in the formation by the 
people of a custom. 

One may ask, how can any one oblige himself to com- 



2Cfr. Reiffenstuel. I, 4. n. 1*6 ff. /. c. I. 4, nn. 31 ff.: Zollinger. 

BCir. c. a, 6°, I, *: "Quia luitit. Juris EccL, I, 1, tit. 4, fl 

tamen loconim speciaHum et person- 228 f. 

arum singularium consuetudines pot- 5 Cfr. the glossa on c. 11, h. t.; 

eat probabiliter ignorare." v. Scherer, /. c, I, p. 132. 

4 Cfr. c. 5, X, V, 41; Bockhn, 



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108 GENERAL RULES 

mit a sin? This objection supposes the distinction be- 
tween a custom against the law and a custom beyond 
the law. 

A custom against the law (contra legem) does not 
create law, but merely removes the obligation of observ- 
ing a law contrary to custom, whilst a custom beyond or 
besides the lazv constitutes a law in defect of a law (de- 
ficiente lege inducit obligationem legis). The latter alone 
is a custom properly speaking. 8 The objection stated 
supposes mala fides in those who commence a custom 
contrary to a law which they are supposed to know. 
We do not deny that those who first act against the law 
may be in mala fide, for they may act with a doubtful 
conscience, which is not permitted except under certain 
well-defined circumstances. However, we fairly deny 
that mala fides is always the first cause of acting against 
a law. There may be a thorough conviction that a law 
is no longer useful or adapted to circumstances, and 
hence had better be disregarded. Besides, it must be 
maintained that the people directly and reflexly have the 
will only of freeing themselves from a burden or restric- 
tion opposed to liberty, which reflexive will cannot be said 
to be evil in itself. Therefore mala fides must not nec- 
essarily be supposed ; and even if it were present in the be- 
ginning, it may disappear afterwards. At any rate, a 
custom against a law may arise 7 either with or without 
mala fides. The next query may be : what is understood 
by people, for so far we have only spoken of the people 
in general. Canon 26 answers that question. 



"-. 



fl A custom according to law ludo optima legum interprts." which 

(iuxta legem) is strictly no custom needs net comment. 

at all, but simply a vivid expression 1 If. Rciffenstael, I, 4. nn. 142 ft.; 

and interpretation of an existing Boekhn, I, 4, nn. 19 ff. ; Wernz, lus 

law; hence can. 29 says: " comue- Dctrelalium, cd. i, I, J55. 



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CANON 26 109 

a 

Can. 26 

Comrnunitas quae lcgis ecclesiasticae saltern reci- 

piendae capax est, potest consuetudinem inducere quae 

vim legis obtineat. 

- 

A community which is capable of having an 

ecclesiastical law imposed on it, can introduce a 

custom which may obtain the force of law. 

Law and custom suppose a certain amount of auton- 
omy. This is verified in corporations acknowledged as 
such by the Church — for we are concerned with eccle- 
siastical law — and hence: (a) the Church at large, (b) 
ecclesiastical provinces and dioceses, and (c) ecclesias- 
tical corporations specially designed as such, for instance, 
religious orders, also single exempt monasteries (e. q. f 
of Benedictines), cathedral chapters, and congregations 
which enjoy exemption. Congregations of religious with 
simple vows, or rather, let us say, diocesan institutes, are 
incapable of introducing a custom, primarily so-called, be- 
cause they lack autonomy in the proper sense. For the 
same reason ecclesiastical parishes cannot form a custom, 
although both parishes and diocesan institutes may have 
observances. 8 

Two other elements essential to custom are contained 

in canons 27 and 28. 

• i 

B 
■ 

Can. 27 

§ 1. Iuri divino sive naturali sive positivo nulla con- 
suetudo potest aliquatenus derogare; sed neque iuri 
ecclesiastico praeiudicium affert, nisi fuerit rationabilis 

a 

et legitime per annos quadraginta continuos ct comple- 

< 

8 Reiftcnstuel, /. c, no. 1 10 ff. 



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no GENERAL RULES 

tos praescripta ; contra legem vero ecclesiasticam quae 
clausulam contineat futuras consuetudines prohiben- 
tern, sola praescribere potest rationabilis consuetudo 
centenaria aut immemorabilis. 

§ 2. Consuetudo quae in hire expresse reprobatur, 
non est rationabilis. 



■ 

§ I. No custom can in any wise derogate from 
a divine law, be it natural or positive; nor does 
any custom prejudice an ecclesiastical law, unless 
it is a reasonable custom and has obtained for 
forty continuous and full years; the only custom 
that can obtain against an ecclesiastical law con- 

o 

taining a clause prohibiting future customs, is a 
reasonable custom that has existed for a century 
or from time immemorial. 

§ 2. No custom is reasonable which is ex- 
pressly reprobated by law. 

If custom is a law which is essentially reasonable, the 
custom itself must be reasonable. Consequently no un- 
reasonable custom is admissible. Canonists have laid 
down certain marks or notes by which a custom is shown 
to be unreasonable. A custom is unreasonable, 

a) If it is contrary to natural and divine law or if it 
runs counter to faith and morals ; • 

r-j 

b) If it is repugnant to the constitution of the Church, 
e. g., if laymen would usurp ecclesiastical power, 10 if a 
council would set itself above the pope, if a priest would 
claim episcopal power, if the liberty of the Church were 



»Cc. 4, 8, ii, Dist. ia; ee, 8. o. io C 14. X. I. 6 de elect 

X, V, 3 de simonia. 



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CANON 28 in 

curtailed, or the free communication between pastor and 
faithful disturbed, etc. 

c) If it is subversive of ecclesiastical discipline, for in- 
stance, contempt of censures, 11 multiplicity of benefices in 
the same hand, 12 and for religious communities if they 
should elect a superior from a different order. 13 

d) If a custom is reprobated by law. 14 
The other element is prescription, 1 * which here means 

the time during which a custom has prevailed. Prescrip- 
tion, according to the Code, requires forty continuous and 
complete years. By this decision the Code has cut a 
Gordian knot and stopped much unnecessary waste of 
paper. The Code has gone even farther by demanding 
a centennial or immemorial prescription in cases where 
a custom is directed against an ecclesiastical law which 
contains a clause prohibiting future customs. For a cus- 
tom beyond the law forty full years' prescription is also 
required. 

Can. 28 

Consuetudo praeter legem, quae scienter a communi- 
tate cum ammo se obligandi servata sit, legem inducit, 
si pariter fuerit rationabilis et legitime per annos qua- 
draginta continuos et completos praescripta. 

en 

A custom beyond the law, which has been 
knowingly observed by a community with the in- 
tention of binding itself, becomes a law if it is 

it C. s. X, I, 4: " msordescere in frequently. 

censuris." 16 Canonists of note reject pre- 

12 C. I, 6°, I, 4. scription as a requisite for custom, 

ia C. 1, Clem. I, 3. but erroneously; cfi\ Schulte. Quel- 

14 Our Code employs the term Un, I, p. 323 ft.; v. Scherer, I, 133. 

" reprobata consuetudine " quite 






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112 GENERAL RULES 

reasonable and has been legitimately observed for 
forty full and continuous years. 



Here we must revert to canon 5 (supra, p. 76) among 
the general norms, for it is directly connected with the 
present subject. This canon ordains, as we have seen, 
that all customs, either universal or particular, although 
immemorial, which are contrary to the canons here em- 
bodied and are expressly condemned as corruptions, must 
be set right nor be allowed to revive. Other customs, if 
centennial and immemorial, may be tolerated when the Or- 
dinaries deem, according to circumstances of time and 
persons, that they cannot be abolished, while all other 
customs must be regarded as suppressed unless the Code 
provides otherwise. This canon states the relation of 
the customs in use at the time of the Code's going in 
force, i. e., the 19th of May, 1918, to the canons of the 
new Code, but it also touches future customs. Customs 
which are expressly reprobated in the new Code (cfr. can. 
818 etc.) must be abolished because the Church regards 
them as corruptions. The future is considered as far 
as it is incumbent upon Sion's watchmen to guard against 
revival. 

The second clause of Canon 5 treats of customs which 
are per se reasonable but not in keeping with the new 
Code. Such customs, if centennial and immemorial, 
may be tolerated. There seems to be a difference be- 
tween a centennial and an immemorial custom, because 
the former term denotes a precise duration, whereas the 
latter implies no more than a span of time that is beyond 
the memory of a fairly old person ; for instance, two gen- 
erations may suffice to accept an immemorial custom. 18 

c 
o 

lflAIl commentators arret that veterata sit ilia cuius initii non ex- 
"consuetudo immemorialii aeu in- tat memoria." Cfr. c. 26, X, V, 4°. 



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CANON 30 113 

But canon 5 employs the conjunctive particle " et" (and), 
while canon zy y § 1, when speaking of prescription, em- 
ploys the disjunctive particle "aut" (or). The differ- 
ence lies in the introduction and abolition of customs, 
inasmuch as a legislator seems more ready to connive 
at the use of customs than at their opposition to a 
newly published code, — which position is entirely intel- 
ligible. However, all customs which are not of the ven- 
erable age indicated, should be suppressed, although com- 
mon sense must even here have its sway; for common 
sense is based upon the dictates of reason and goes a 
long way. 

Can. 29 

Consuetudo est optima legum interpres. 
Custom is the best interpreter of laws. 

This canon needs no further explanation in view of 
what we have said above. 

abolition of customs 

Can. 30 

Firrno praescripto can. 5, consuetudo contra legem 
vel praeter legem per contrariam consuetudinem aut 
legem revocatur; sed, nisi expressam de iisdem men- 
tioncm fecerit, lex non revocat consuetudines cente- 
narias aut immemorabiles, nee lex generalis consuetu- 
dines particulares. 

Can. 5 remaining in full force, a custom either 
against or beyond the law may be revoked by a 

io which the Gloss adds: " diligr.nter live privilegium inducit." 
noUndum quod consuetudo ilia iui 



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114 GENERAL RULES 

contrary custom or law; however, a law, unless 
it makes express mention thereof, does not abol- 
ish centenary or immemorial customs, nor does a 
general law abolish particular customs. 



That a contrary custom may make another custom in- 
effective, is evident; for custom is law, and therefore, 
as a law is revoked by a contrary law, so also a custom 
may be revoked by a contrary custom. Only we must 
notice that the contrary custom must fully cover the 
old custom and be vested with the requisites set forth 
above. As to the effect which a contrary law exerts upon 
a custom, the canon says that it does not revoke a cus- 
tom unless it contains an express clause to that effect. 
Such clauses are: "nulla obstante consuetudine/' and 
"nulla obstante consuetudine etiam immcmoriali." The 
first clause revokes any general (not particular) custom 
less than centennial or immemorial ; the second abolishes 
also immemorial customs. If the lawgiver wishes to do 
away with some particular custom, he adds the clause 
" non obstante consuetudine etiam particulari " or some 
similar expression. A custom expressly called * repro- 
bata " is abolished even by the first-quoted simple clause. 17 

One last question : Can a custom arise against the new 
Code itself? The same query was made concerning cus- 
toms arising against the decrees of the Council of Trent. 
Hence we answer with the majority of canonists: 18 A 
custom branded as reprobate, being unreasonable, cannot 
be admitted at all or only with greatest difficulty, but 
other customs may arise also against the new Code. For 
the resp. clausula e are nothing but disciplinary laws, and 
disciplinary laws admit of a contrary custom. 

17 Cf. Reiffcnstuel, I, 4, n. 190. 18 Cfr. Aichner, /. c, § 17, 3- 



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TITLE III 

ON THE RECKONING OF TIME 

The present title does not deal with the chronology 
employed in papal documents, but with the canonical 
method of calculating time. It may be noted that 
since the pontificate of Gregory VII (1073-85) the reign 
of each pontiff commenced with his election, and papal 
documents were dated according to the year of the Incar- 
nation (25 March) or Christmas Day. Now they are 
dated according to the calendar year. The indictions 
(periods of fifteen years) have also disappeared with- 
out detriment to chronology. This premised, we will 
now follow the Code in its determination of the value 
and duration of the different components of time. 

Can. 31 

Salvis legibus liturgicis, ternpus, nisi aliud expresse 
caveatur, supputetur ad normam canonum qui se- 
quuntur. 

Aside from the liturgical laws, time must be 
reckoned according to the norms established in 
the following canons, unless a different method is 
expressly provided. 



The liturgical norms which are here excepted from 
the following rules, concern the liturgical year coramenc- 
ing with the first Sunday of Advent, the celebration of 
feastdays (a vespera usque ad vesperam), as far as the 

"5 



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n6 GENERAL RULES 

office is concerned, and the gaining of indulgences. In 
these matters then, which were noted in the computus ec- 
clesiasticus, the Code does not make a change. 1 

Cak. 32 

§ 1. Dies constat 24 horis continuo supputandis a 
media nocte, hebdomada 7 diebus. 

§ 2. In iure nomine mensis venit spatium 30, anni 
vero spatium 365 dierum, nisi mensis et annus dicantur 
sumendi prout sunt in calendario. 



■ 



§ I. The day consists of twenty-four hours 
calculated from midnight; the week of seven 
days. 

§ 2. The law reckons the month as a period 
of thirty days, the year as a period of 365 days, 
unless it is expressly declared that month and 
year are to be taken as they are in the calendar. 



This is to be understood in the case only of several 
months or years being enumerated without any further 
designation, or in the sense of a period, where a month 
would equal 30 days, and vice versa. 



Can. 33 

§ 1. In supputandis horis diei standum est communi 
loci usui; sed in privata Missae celebratione, in privata 
horarum canonicarum recitatione, in sacra communione 
recipienda ct in ieiunii vel abstinentiae lege servanda, 

licet alia sit usualis loci supputatio, potest quis sequi 

- 

1 Cf. Oavatiti, Thesaurus S. Hi- 1898, I, 123 ff. Concerning indul- 
tuum, Venet., 1740, II, 17 ff.; Van gences S. O- (tie indulg.), Jan. 26, 
dcr S tap pen, Sacra Liturgia, Mcchl., 191 1. 



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CANON 33 "7 

St 

tempus aut locale sive verum sive medium, aut legale 
sive regionale sive aliud extraordinarium. 
§ 2. Quod attinet ad tetnpus urgendi contractuum 

obligationcs, servctur, nisi aliter expressa pactione con- 
ventual fuerit, praescriptum iuris civilis in territorio 
vigentis. 



■ 

§ i. In reckoning the hours of the day, the 
common local usage must be followed ; but in the 
private celebration of Mass, in the private recita- 
tion of the Breviary, in receiving Holy Com- 
munion, and in the observance of fast and ab- 
stinence, though the usual computation of time 
differs, one may follow the local time, true or 
mean, or the legal time, regional or extraordi- 
| nary. 

§ 2. When there is question of enforcing con- 
tractual obligations, the time prescribed by civil 
law should be followed, unless otherwise ex- 
pressly agreed upon. 

Common usage reckons the day from midnight to mid- 
night. In some countries twice twelve hours are counted, 
while in others (e. g., Italy) the watch shows twenty- 
four continuous hours. Some liberty is granted in the 
private celebration of Mass, the private recitation of the 
Breviary, receiving Holy Communion and observing the 
laws of fast and abstinence In these matters one may 
follow local or legal custom, although both may differ 
from common usage. Local custom may have accepted 
the real or mean solar time, whilst legal custom is that 
assumed by law and acknowledged in a province or coun- 



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118 GENERAL HULLS 

try. The astronomical calculation of a day would be 
that of sidereal time, which differs from the mean solar 
time, the solar day being some three minutes and fifty-five 
seconds longer than the sidereal day. 2 What is of prac- 
tical use, however, is to know that in the United States 
there are five different kinds of time, 15 of longitude 
corresponding exactly to one hour of time difference. 
The time of the 60th meridian is called Colonial, that of 
the 75th Meridian, Eastern, that of the 90th, Central, 
that of the 105th, Mountain, that of the 120th, Pacific 
time* In fulfilling the duties mentioned in the canon, 
one may follow sidereal time, if one is a good astron- 
omer, or the mean solar time, generally called " railroad 
time." 

In matters of contract the time assumed by civil law 
must be followed, unless otherwise agreed upon by the 
contracting parties. In this country the laws of the 
different States will, therefore, have to be consulted. 4 

The next canon enters into details which touch more 
closely upon the starting and finishing point of a given 
period, and a distinction is drawn between juridical and 
calendar time. It is well known that the English law, 
for instance, has a double way of counting time. Thus 
when a deed speaks of a month, it is a lunar month con- 
sisting of 28 days, unless the context shows that a calen- 
dar month of 31 days was intended. Thus also, accord- 
ing to English law, when a calendar month's notice of 
action is required, the day on which it is served is in- 
cluded and reckoned one of the days; and therefore, if 
a notice be served on the 28th of April, it expires on the 
27th of May, and the action may be commenced on 

2Cfr. Youiik, Manual of Astron- cycl, 1904, Vol. XIX, p. aor. 
omy, 1902, p. 8-v ff. * Cir. BlacVstone-Cooley, /. c, II, 

8 Cfr. the New International En- p. 141 f. 



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CANON 34 119 

the 28th. The same law, however, in ecclesiastical mat- 
ters calculates the month according to the calendar or 
solar reckoning. 6 This premised, let us see what the 
Code determines: 

Can. 34 

- 

§ i. Si mensis et annus dcsignentur proprio nomine 
vel aequivalenter, ex. gr., mense februaiio, anno 
proxime futuro, sumantur prout sunt in calendario. 

§ 2. Si terminus a quo nee explicite nee implicite 
assignetur, ex. gr., suspensio a Missae celebratione per 
mensem aut duos annos, tres in anno vacationum 
menses, etc., tempus supputetur de momenta ad mo- 
mentum ; et si tempus sit continuum, ut in allato prime* 
exemplo, menses et anni sumantur prout sunt in 
calendario; si intermissum, hebdomada intelligatur 7 
dierum, mensis 30, annus 365. 

§ 3. Si tempus constet uno vel pluribus mensibus aut 
annis, una vel pluribus hebdomadibus aut tandem 
pluribus diebus, et terminus a quo explicite vel impli- 
cite assignetur : 

i.° Menses et anni sumantur prout sunt in calen- 
dario; 

2. Si terminus a quo coincidat cum initio diei, ex. 
gr., duo vacationum menses a die is augusti, primus 
dies ad explendam numerationem computetur et 
tempus finiatur incipiente ultimo die eiusdem numeri ; 

3. Si terminus a quo non coincidat cum initio diei, 
ex. gr., decimus quaitus aetatis annus, annus novitia- 
tus, octiduum a vacatione sedis episcopalis, decen- 
dium ad appellandum, etc., primus dies ne computetur 
et tempus finiatur expleto ultimo die eiusdem numeri; 

4. Quod si mensis die eiusdem numeri careat, ex. 



o tfr Blackstone-Cooley, X, p. 141. 



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iso GENERAL RULES 

gr., unus mensis a die 30 Ianuarii, tunc pro diverso 
casu tcmpus finiatur incipiente vel explcto ultimo die 
mensis ; 

5. Si agatur de actibus eiusdem generis statis tera- 
poribus renovandis, ex. gr., triennium ad pioiessionem 
perpetuam post temporariam, triennium ahudve tern- 
pons spatium ad electionem renovandam, etc., tempus 
finitur eodem recurrente die quo incepit, sed novus 
actus per integrum cundem diem poni potest. 

On account of the technical character of this canon, 
we shall add our explanation immediately to each para- 
graph. 

1. If months and years are designated by their names, 
or in equivalent terms, they must be understood as calen- 
dar months and years. Thus the month of February must 
be taken as comprising 28 days; if an equivalent term 
is used, as, e. g., " in the next following year," let us say 
1920, the leap year is understood, or 366 days, w r hile the 
uneven years have each but 365 days. 

2. If the starting point or date from which anything 
is calculated, is neither explicitly nor implicitly deter- 
mined? the time must be reckoned from moment to mo- 
ment, thus, e. g., a suspension from the celebration of 
Mass for a month or two years commences on the day 
and hour when the letter was received by the suspended 
priest. The same holds good concerning the other ex- 
ample alleged, viz., three months' vacation a year. The 
canon further explains the first example thus : if the time 
or period is continuous (as in the case of suspension), the 
calendar month and year are to be understood; hence 



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© Implicitly, for instance, after Easter Sunday, or on the feast of Pentecost, 

next month. 



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CANON 34 121 

% 

if the letter of suspension arrives at 5 p. m., let us say, on 
the 5th of October, the suspension lasts until December 
5th, 5 p. m. If the time or period is or may be inter- 
rupted, as in the example of leave of absence, a week 
means 7 days, a month 30 days, a year 365 days, 

3. If the time or period consists of one or more months, 
or years, or of one or more weeks, or of several days, 
and the starting point is explicitly or implicitly deter- 
mined, various hypotheses may arise. 

1°. Months and years are always assumed to be cal- 
endar ones. 

2°. If the starting point (terminus a quo) coincides 
with the beginning of the day, the first is included in 
reckoning the time, and the time or period expires with 
the beginning of the last day of the same number, e. g., 
if a two months' vacation is given, beginning August 15th, 
the time runs out on the morning of October 15th. 

3 . If the starting point does not coincide with the be- 
ginning of the day, the first day is counted in and the term 
expires when the last day of the same figure is completed. 
Thus, if one commences a year's novitiate on the after- 
noon, say of the 5th of October, 1917, he can make 
his profession on October 6th, 1918, because the last day 
is complete only after the last stroke of midnight, October 
5th, or as soon as October 6th has commenced. 

4 . If the month has no day of the same number, say 
one month from January 30th, then, duly considering 
diverse cases, the term expires either with the beginning 
or ending of the last day. What "due consideration" 
means is evident from the two foregoing hypotheses; 
wherefore in the first case the month from January 30th 
is the 28th or 29th of February in leap years, if the 
terminus a quo fell on the beginning of the day ; it ends 



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122 GENERAL RULES 

on March 1st, if the terminus a quo fell on a later part of 
the day. 

Here the difficulty may be mooted as to what is under- 
stood by the beginning of a day. The Code (can. 32) 
merely says that the days must be completed from mid- 
night. Civil law, generally speaking, rejects fractions of 
a day. 7 Canon law, by enjoining computation " from 
moment to moment," if nothing is said to the contrary, 
considers fractions. 8 Hence, speaking of the beginning 
of a day (initium diei), the law means that part which, 
according to common usage, forms the first portion of the 
day. How far that can be stretched, is mere guesswork ; 
but to extend it to noon would, in our opinion, be against 
the intention of the law as well as contrary to common 
usage. Nine o'clock would be about the limit. 

5 . If a recurrence of the same act at stated times is 
in question, the term expires on the same recurring day, 
but the new act may be performed throughout the whole 
recurring day, for instance, profession after a term of 
three years, temporary vows, triennial elections, for in- 
stance, October 5th, 1917 — October 5th, 1920. 

EL 

Can. 35 

Tcmpus utile illud intelligitur quod pro cxercitio aut 
prosecutione sui iuris ita alicui competit ut ignoranti 
aut agere non valenti non currat; continuum, quod 
nullam patitur interruptionem. 



The tempus utile is the time granted for exer- 
cising or prosecuting certain rights, so that in 
case one should ignore it or be unable to make 
use of it, the lapse of time would not damage or 

1 BUckstone-Coolej, L c, p. 141. 8 ReiffenBtuel, U, 27, n. in. 



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CANON 35 123 

prevent him; the tempus continuum is that which 
runs without interruption. 

The so-called tempus utile is distinguished from the 
tempus continuum, i. e. t time which runs continually 
without regard to ferial days or the presence or absence 
of persons, etc. For instance, if the tempus utile for a 
restitutio in integrum were four years, and one were 
not aware of having been wronged, the time would not 
commence with the day of the wrongdoing but with the 
day when the defendant realized that action must begin ; ■ 
thus also in cases of summons or citations. 

1 Ctr. Engel, I, 41, n. 11 de in integrum restiutlone. 



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TITLE IV 
ON RESCRIPTS 



A rescript is a written answer given by a legitimate ec- 
clesiastical superior, either directly, or indirectly through 
the medium of a competent tribunal, to a question pro- 
posed or a favor asked for. As we have stated above, 
as early as the eleventh century there were two kinds of 
papal letters, litterac grattoe and litterae justttiae. Lit- 
terae gratiae or rescripts of favor proceed from the mere 
liberality — although perhaps petitioned — of the pontiff 
or bishop in matters wholly subject to their good pleas- 
ure and uncontested, e. g., a nomination to a domestic 
prelacy. Litterae justitiae refer to justiciable matter to 
be settled between contending parties in legal form, e. g., 
boundary disputes, questions of precedence, etc. 

The definition says that rescripts may be granted 
directly or indirectly. To understand the difference be- 
tween the two species note the fact that, as a general 
rule, the Pope issues rescripts through the ordinary 
Roman tribunals; yet he is not bound to use that means 
t (can. 38). 

Besides, it has become customary to send rescripts 
granted by the Roman Curia to an executor. The execu- 
tor, as a rule, is a dignitary, i. c, one constituted in a real 
or honorary dignity, most commonly the Ordinary of 
the diocese or, for religious, the superior general or 
provincial. There is a distinction between the executor 

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CANON 36 125 

voluntarius and the executor necessarius; the former 
acts as a judge, i. e., he decides whether or not the rescript 
can be put into effect (can. 54) ; whereas the executor 
necessarius is obliged to sign and deliver the rescript to 
the person concerned. Whether an executor is volun- 
tarius or necessarius depends on the clauses added to 
the rescript. If the conditional particles "si" or " dum- 
modo " arc to be found in the rescript, the executor is 
considered voluntarius, not a mere instrument for execut- 
ing the will of the superior, 2 and hence is obliged to pro- 
ceed as if he had received a mandate or authoritative 
commission, by which jurisdiction is given to him in the 
case (can. 55). These preliminary notions supposed, 
- the Code first establishes who ate capable of demanding 
a rescript, either from the Apostolic See or the Ordinaries, 
and lays down the rule that all may petition for a re- 
script, unless expressly incapacited under the law. 



Can. 36 

§ 1. Rescripta turn Scdis Apostolicae turn alio rum 
Ordinariorum impetrari libere possunt ab omnibus qui 
expresse non prohibentur. 

§ 2. Gratiae et dispensations omne genus a Sede 
Apostolica concessac etiam censura irretitis validac 
sunt, salvo praescripto can. 2265, § 2, 2275, n. 3, 2283. 

§ i. Rescripts may be freely asked both from 
the Apostolic See and from other Ordinaries by 
all who are not expressly prohibited (from asking 
for them). 

2 Sometimes an exsecutor mirtus jaeienda, which is a favor granted 

is inserted between the two men- and only needs execution; this kind 

tioned. An ersreutor mirttts in nne of executorship may be called a 

irho is authorized to execute a grai%a " nudum ministerium." 



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126 GENERAL RULES 

§ 2. Favors and dispensations of all kinds 
granted by the Holy See are valid, even if the 
beneficiaries are under censure, with due regard, 
however, to can. 2265, § 2, can. 2275, n. 3, and 
can. 2283. 

Favors and dispensations of all kinds granted by the 
Holy See even to censured persons are valid, exceptis 
excipicndis. The law prohibits the following from ask- 
ing for a rescript : All excommunicated persons, which 
heading includes all heretics, 3 all those excommunicated 
after a declaratory or condemnatory sentence, and all 
who are personally interdicted or suspended, unless the 
rescript mentions the fact of excommunication. This is 
frequently done by the addition of the clause, " absolutis 
a censttris," etc., which has no other effect than to 
render the petitioner capable of receiving the rescript; 
hence de facto he is not absolved from excommunication. 

It must be furthermore noted that, according to all 
authors, even excommunicated persons are allowed to 
ask for a rescript revoking their excommunication, inter- 
dict, suspension, etc., else the way of justice would be 
precluded to them. 

rl 

Can. 37 

Rescriptum impetrari potest pro alio etiam praetcr 
cius assensum; et licet ipse possit gratia per rescrip- 
tum concessa non uti, rescriptum tamen valet ante eius 
acceptationem, nisi aliud ex appositis clausulis ap- 
pareat. 



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A rescript may be obtained for another (or 

S Cfr. c. t3. X. V. 7 de haereticia. 



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CANON 38 127 

third) person even without the latter's consent; 
and though this third person may not be able to 
avail himself of the favor conceded by the re- 
script, yet the rescript is valid before its accept- 
ance, unless otherwise provided for in the ap- 
pended clauses. 

The wording of this canon is not entirely clear ; but 
comparing it with c. 28, X, 1, 3, § 1, we may conclude that 
not only rescripts of favor, as the Decretals (1. c. ) state, 
but also rescripts of justice, i. e., all kinds of rescripts, 
are valid before the act of acceptance is made by the party 
unable (e. g., because a heretic) to profit by the rescript. 

The " appended clauses " may regard either the capa- 
bility of the third person or the acceptation, which may 
be conditioned by circumstances of absence or other im- 
pediments. 

date and requisites 

Can. 38 

Rescripta quibus gratia conceditur sine intcriecto 
cxsccutore, cffcctum habent a momcnto quo datae sunt 
litterae; cetera a tempore exsecutionis. 

Rescripts by which a favor is granted without 
the agency of an executor, take effect from the 
date of their signature; all others, from the date 
of execution. 

Hence, e. g. % a rescript granting a personal or, generally 
speaking, a private favor is valid as soon as the Pope has 
signed it. All other rescripts take effect from the date 
of the executor's signature. 



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128 GENERAL RULES 

What about a telephone or telegraph message? Leav- 
ing aside matrimonial and other weighty matters, the 
telephone or telegraph may be used in order to transmit 
notice whether the petition was granted or not. It is cer- 
tain that the Papal Secretary of State may use this means. 
Generally speaking, the person from whom notice is de- 
manded must he an official who is in a position to know. 
Private persons are not to be relied upon. 

According to Canon 56 (infra, p. 145) the rescripts 
which are handed over to an executor demand execution 
in writing if they regard the forum externum. However, 
after the executor has properly investigated the matter 
and signed the document, he may, if asked for, transmit an 
answer by telephone or telegraph and send the written 
document afterwards. Note, however, that such a trans- 
mission is the exception, not the rule.* 

The Code insists on written execution only for those re- 
scripts which do not directly concern the conscience, and 
hence those touching the forum conscicntiac may be trans- 
mitted by these " extraordinary " means, provided, of 
course the sigilhtm confessionis is safeguarded. 



Can. 39 

Conditioner in rcscriptis tunc tantum essentiales pro 
eorundem validitate censentur, cum per particulas si, 
dummodo, vel aliam eiusdem signification is exprimun- 
tur. 



Conditions made in rescripts are essential to 
their validity only if they are expressed by the 

4 The Secretariate of State. 10 Cfr. De Smedt. D$ Spons. et Mot.. 
Dec, 1891, has declared this kind of ioio, I. p. 532. P- 547- 
transmission an extraordinary one. 



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CANON 40 129 

particles si, dummodo, or others of the same 
meaning. 

Can. 40 

In omnibus rescriptis subintelligenda est, ctsi non 
expressa, conditio : Si preces veritate nitantur, salvo 
pracscripto can. 45, 1054. 

In all rescripts, even when not expressly stated, 
this condition must be understood: // the re- 
quest is founded on truth, with due regard to 
can. 45 and 1054. 

Phrases of similar meaning as si and dummodo are 
the ablative absolute, e. g. " constito de assertis " or 
" narratis" which is truly a conditional clause, so that if 
it were not verified the rescript would be invalid. 5 This 
condition, "si preces veritate innitantur" is implied in 
every rescript, with the exception of " motu proprio" with 
some modifications (see below). The reasons for a pe- 
tition, and consequently for the validity of the grant, must 
actually exist at the time the rescript is signed by the 
grantor, provided no executor is assigned ; if an executor 
is selected, the reason must be verified at the time when 
the executor signs the document. For instance, a rescript 
permitting a private oratory is valid when all the condi- 
tions for such an oratory are fulfilled at the date when 
the Ordinary (to whom such rescripts are generally di- 
rected) signs the paper. This is the meaning of Can. 41. 



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Can. 41 
In rescriptis quorum nullus est exsecutor, preces 

5 Cf . Barbosa, Tractatus Varii, de clausulis, n. 25, p. 375. 



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130 GENERAL RULES 

vcritate nitantur oportet tempore quo rescriptum 
datum est ; in ceteris tempore exsecutionis. 

In rescripts for which no executor is appointed, 
the conditions upon which the petition is based 
must be real at the time the rescript is signed; in 
all others, at the time of the execution. 

It may happen, however, that the grantor, and per- 
haps the executor also, were deceived by the petitioner, 
who either did not state the full truth (subreptio) or al- 
leged a reason which had no foundation in fact 
(obreptio). Such a deception may arise either from 
ignorance or malice." This difference is not mentioned in 
the Code, which simply says: 



Can. 42 

V 

§1. Reticentia veri. seu subreptio, in precibus non 
obstat quorninus rescriptum vim habeat ratumque sit, 
dummodo expressa fuerint quae de stylo Curiae sunt 
ad validitatem exprimenda. 

§ 2. Nee obstat expositio falsi, seu obreptio, dum- 
modo vel unica causa proposita vel ex pluribus pro- 
posals una saltern motiva vera sit. 

§ 3. Vitium obreptionis vel subreptionis in una tan- 
tum parte rescript! aliam non inf.rmat, si una simul 

a 

plures gratiae per rescriptum concedantur. 

§ i. Failure to state the full truth {subreptio) 
in the petition does not prevent a rescript from 
being valid and going into effect, provided men- 



« Cfr. c. ao, X, T, 3, which chapter regards the distinction between igno- 
18 called in the nummary the " key ranct and malice. 
of the whole title "; our canon dis- 



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CANON 42 131 

tion was made of whatever the stylus Curiae re- 
quires for validity. 

§ 2. Neither is a rescript obtained by the alle- 
gation of a falsehood (obreptio) invalid, provided 
the sole reason, or at least one of the several rea- 
sons alleged, is true. 

§ 3. Either defect, obreptio or subreptio, oc- 
curring in only one part of a rescript, does not in- 
validate the other parts, if several favors are 
granted simultaneously by the same rescript. 



As to the first clause (§ 1), the stylus Curiae pre- 
scribes certain canonical reasons for matrimony, the dif- 
ferent lines and degrees, as well as certain formularies 
to be used in obtaining faculties or dispensations from 
the various Roman Congregations. This customary 
style is, of course, best known to the agents engaged in 
business with these Congregations. If a petition is not 
properly drawn up, it is usually returned to the peti- 
tioner j to be corrected. 7 

As to § 2 : The motive cause or final reason (can. 45) 
is the one which moves the superior to grant a petition. 
If, therefore, this one is false, the rescript will be null 
and void, and the petitioner can neither licitly nor validly 
use the favor granted therein. 

Note that our canon makes a distinction in favor of 
subreptio, which the Corpus Juris did not admit under 
the circumstance of deliberate falsehood, either expressed 
or suppressed. 9 The new Code is also benign in ad- 
mitting the divisibility of a rescript which contains sev- 
- 

7 The stylus Curiae has been de- p. 15. The clausula* also belong to 
scribed above; cfr. alio Putzer, the " Roman Style." 
Comment, in Focultates Apost., 1807, b Cfr. c. so, X, I, 3. 



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132 GENERAL RULES 

cral favors, e. g., that of saying de requiem and reciting 
other prayers instead of the Breviary. 

To provide for a uniform procedure and to avoid con- 
fusion, as well as to prevent rescripts from being, as 
it were, received stealthily, the following two canons have 
been inserted : 

Can. 43 

Gratia ab una Sacra Congregationc vcl Officio 
Romanac Curiae denegata, invalide ab alia Sacra Con- 
gregatione vcl Officio aut a loci Ordinario, etsi potesta- 
tem habente, conceditur sine assensu Sacrae Congre- 
gationis vel Officii quocum vel quibuscum agi coeptum 
fuit, salvo iure S. Poenitentiariae pro foro interno. 



A favor denied by one Sacred Congregation or 
Office of the Roman Curia cannot validly be 
granted by another Congregation or Office, or by 
the local Ordinary, even though he have the 
power, except with the consent of the S. Congre- 
gation or Office which handled the case first, — 
without, however, violating the right of the S. 
Penitentiary in matters of conscience. 

O 

I 

Can. 44 

§ 1. Nemo gratiam a proprio Ordinario denegatam ab 
alio Ordinario petat, nulla facta denegationis men- 
tione ; facta autem mentione, Ordinarius gratiam nc 
concedat, nisi habitis a priore Ordinario denegationis 
rationibus. 

§ 2. Gratia a Vicario Generali denegata et postca, 
nulla facta huius denegationis mentione, ab Episcopo 
impetrata, invalida est; gratia autem ab Episcopo 



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CANON 44 133 

denegata ncquit validc, etiam facta denegationis men- 
tione, a Vicario Generali, non conscntiente Episcopo, 
impetrari. 

§ i. No one shall ask another Ordinary for a 
favor refused by his own Ordinary without mak- 
ing mention of the refusal; if mention is made, 
the second Ordinary shall not grant the favor 
until informed of the reasons for the former 
Ordinary's refusal. 

§ 2. A favor denied by the Vicar General and 
later obtained from the Bishop, without mention 
of the refusal, is invalid; a favor denied by the 
Bishop cannot validly be asked of the Vicar Gen- 
eral without the Bishop's consent, even if men- 
tion of the refusal is made. 



The underlying principle of this regulation is that the 
Roman Curia, as well as the Bishop and his Vicar Gen- 
eral form a unit. Two different Bishops constitute two 
separate tribunals, wherefore in § 1 of Can. 44 the in- 
validity of the rescripts is not asserted, but merely their 
illicitness, for the purpose touched above. 



*l «*-.**tri ~.nn~ n * n " 



THE CLAUSE MOTU PROPRIO 

Boniface VIII made a distinction between a rescript 
given " Motu proprio," which, he says, proceeds from 
pure liberality, and one obtained by petition. 10 In course 
of time, especially since Innocent VIII, " Motu proprios M 
became more frequent and were no longer acts of grace, 



The "novum genu* merci- 10 Cf. c. 23, 6 m , III, 4 de prae- 

monii " mentioned in c. 28, h. t., is bendis. 
thereby precluded. 



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134 GENERAL RULES 

but could be petitioned for (ad instantiam) \ the Supreme 
Pontiff merely added " Motu proprio " in order to give 
full and unlimited effect. The new Code has partly re- 
tained this custom and partly modified it, as follows : 

Can. 45 

Cum rcscriptis ad preces alicuius impetratis apponi- 
tur clausula: Motu proprio, valent quidem ea, si in 
precibus reticeatur Veritas alioquin necessario expri- 
mcnda, non tamen si falsa causa finalis eaque unica 
proponatur, salvo praescripto can. 1054. 



■ 



Rescripts issued with the clause Motu proprio 
are valid, even if subreptitious, unless the final 
reason, if it be the only one, is falsely alleged 

For instance, if a rescript were obtained dispensing 
the petitioner from reciting the Breviary on account of 
weak eyes, and this claim rested on mere imagination, 
the rescript would be invalid. There are three other 
cases in which a " Motu proprio " is of no effect : 

Can. 46 

Rescripta etiam Motu proprio concessa personae de 
jure communi inhabili ad consequendam gratiam de 
qua agitur, itemque edita contra alicuius loci legifcimam 
consuetudinem vel statutum peculiare, vel contra ius 
alteri iam quaesitum, non sustinentur, nisi expressa 
derogatoria clausula rescripto apponatur. 



A rescript, even though granted Motu proprio, 
is of no effect if given to a person incapable of the 
favor granted under the common law, or against 
the lawful custom or particular statute of the 



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CANON 47 135 

place, or against the acquired right of another 
person, unless a derogatory clause is appended to 
the rescript. 

A rescript is invalid if given to a person who is incapa- 
ble of the favor u granted because the law itself makes 
him incapable. The superior is not supposed to contra- 
dict the law. A favor is equally invalid if given against 
the lawful custom or a particular statute of the place or 
if it trenches on the lawfully acquired right of a third 
person. The reason for the last two provisions is the 
ignorance of a superior concerning particular laws and the 
jura tertii, which he is not supposed to infringe upon. 12 
However, if a derogatory clause is appended directly 
affecting the incapability of the person, or particular laws, 
or the jus tertii, the rescript is valid. Exception is made 
in favor of matrimonial dispensations from minor im- 
pediments; see can. 1054. 



MISTAKES IN RESCRIPTS 

n 



Can. 47 

Rescripta non Hunt irrita ob errorcm in nomine 
personae cui vel a qua conceduntur, aut loci in quo 
ipsa moratur, aut rei de qua agitur, dummodo, iudicio 
Ordinarii, nulla sit de ipsa persona vel re dubitatio. 

Errors affecting the name of the person to 
whom or by whom a rescript is issued, or the place 
where the person dwells, 18 or the favor itself, do 



11 For instance, if the petitioner capable of the favor and coose- 

•uffers from irregularity, defect of quently of the rescript. 
age, illegitimate birth. Reiffenrtuel, 12 Cfr. c. 8. 6°, I, 3. 

I, 3, n. 208 f. Of course, if the re- it However, a mistake about the 

script is issued precisely to take away diocese would invalidate the rescript, 

these defects, the petitioner becomes Cfr, c. 34, X, I, 3. 



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136 GENERAL RULES 

not render a rescript invalid, if the Ordinary is 
persuaded that no doubt exists as to the identity 
of the person or the thing asked for. 



We may add, however, that as formerly, so now, 
a manifest error or an erasure in the dispositive and es- 
sential part would cast serious suspicion upon the genu- 
ineness of a papal document. 1 * 

s 

PREFERENCE, INTERPRETATION, AND PRESENTATION 

If several rescripts were obtained about one and the 
same question or subject-matter, e. g. t some point of 
rubrics, let us say the recital of old or new canticles, 1 * 
one rescript contradicting the other, the question arises, 
which one must be followed ? The Code answers as f ol- 
lows: 

Can. 48 

§ 1. Si contingat ut de una eademque re duo rcscripta 
inter se contraria impetrentur, peculiare, in iis quae 
peculiariter exprimuntur, praevalet generali. 

§ 2. Si sint aeque peculiaria aut generalia, prius 
tempore praevalet posteriori, nisi in altero Hat ex- 
pressa mentio de priore, aut nisi prior impetratur dolo 
vel notabili negligentia suo rescripto usus non fuerit. 

§ 3- Quod si eodem die fuerint concessa nee liqueat 
uter prior impetraverit, utrumque irritum est, et, si 
res ferat, rursus ad eum qui rescripta dedit, est re- 
currendum. 



§ 1. If it should happen that two rescripts re- 

I+C 11, X, I, 3; c. 6, X, II, 22 edidioe Order concerning a decree 

de Fide instrumentorum. of June 9, 191s. and a rescript of 

is This happened in the Swiss- later date; but the mistake waa made 

American Congregation of the Ben- in Rome. 



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CANON 49 137 

ferring to the same matter are contradictory, 
the rescript containing a peculiar or particular 
enactment must be accepted in preference to the 
one containing a general enactment. 

§ 2. If both rescripts are alike particular or 
general, the one which is dated or received earlier 
must be preferred to that of later date, unless spe- 
cific mention is made in the latter rescript of the 
earlier one, or unless the first petitioner, through 
fraud or notable negligence, has not made use of 
the earlier rescript. 

§3. If the two rescripts were issued on the 
same day, and it is not apparent which was ob- 
tained first, both are invalid, and, if feasible, re- 
course must be had to the grantor. 



According to § 1, a special favor is to be preferred to a 
general one, because " species derogat generi." 10 

Fraud may be committed by withholding the document, 
and notable negligence would be failure to make use of 
the favor granted for one year. 17 

Can. 49 

Rescripta intelligenda sunt secundum propriam ver- 
borum significationem ct communem loquendi usum, 
ncc debent ad casus alios praeter expressos extendi. 



Rescripts must be interpreted according to the 
proper meaning of the words and common par- 

lfl Reg. juris 34 in 6°. 11 possible in marriage rescripts, but 

it Cf. cc. 9, 23, X, l t 3. Fraud especially In rescripts of justice. 



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138 GENERAL RULES 

lance, nor are they to be extended to cases not 
mentioned therein, 18 



Four kinds of rescripts must be interpreted strictly, 
i. e.j neither extensively nor restrictively, but according to 
the exact wording of the text, to wit: (a) rescripts of 
justice which are intended to settle a controversy; (b) 
those which may injure the acquired rights of others; 
(c) those which are adverse to the special laws of private 
persons; and (d) those which contain an appointment to 
an ecclesiastical benefice. All other rescripts may be 
broadly and benignly interpreted; " favor es ampliandi 
sunt" The reason for interpreting the first kind strictly 
is that the superior wishes to prevent litigation and this 
object could not be accomplished if a broad interpretation 
were admissible. 18 The reason for interpreting the sec- 
ond and third kind of rescripts strictly must be sought in 
the intention of the superior of defending the rights of 
others, especially if these are acquired by privileges, e. g., 
of exempt religious. The reason for a strict interpreta- 
tion of rescripts in beneficiary matters lies in the fact 
that such rescripts favor ambition. Hence if, e. g. t a dig- 
nity or office in a cathedral chapter is conferred, the two 
are not to be taken promiscuously. All other rescripts 
of favor are susceptible of a broad interpretation, be- 
cause " plenissima alias in beneficiis interprelatio faci- 



enda." zo 



As to presentation, which is nothing else but the show- 
ing of the rescript to the Ordinary, it must be observed 
that this act, though not necessary, is at least very becom- 
ing, inasmuch as the diocesan Bishop is the proper guard- 
ian of law and discipline in his territory. Hence, in 

18 C. 14. 6°, T, 3. 20 Cfr. cc. 4, 27, 6\ III, f 4$ 

X* Cfr, c. 28, X, I, 3. praebyidift. 



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CANON si 139 

rescripts giving faculties for various blessings the claus- 
ula is found, " cum consensu Ordinarii" 



Can. 50 

In dubio, rescripta quae ad lites referuntur, vel iura 
aliis quaesita lacdunt, vel advcrsantur legi in coramo- 
dum privatorurn, vel denique impetrata fuerunt ad 
beneficii ecclesiastic! assecutioncm, strictam interpre- 
tationem recipiunt; cetera omnia latam. 

In case of doubt, rescripts which pertain to dis- 
putes, or which trench on the acquired rights of 
others, or which reverse the law in favor of pri- 
vate parties, or, finally, which were given for the 
attainment of an ecclesiastical benefice, demand a 
strict interpretation ; all others may be interpreted 
broadly. 



The following canons state the duty of presentation 
as limited by certain conditions. 

L 

Can. 51 

Rescriptum Sedis Apostolicae in quo nullus datur 
exsecutor, tunc tantum debet Ordinario impetrantis 
praescntari, cum id in eisdem litteris praecipitur, aut 
de rebus agitur publicis, aut comprobare conditiones 
quasdam oportet. 



A rescript of the Apostolic See which des- 
ignates no executor must be presented to the 
Ordinary of the petitioner only in case the presen- 
tation is enjoined in the document itself, or if 



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140 GENERAL RULES 

there is question of public affairs, or if there are 
conditions that are subject to probation [i. e., as- 
certaining the truth]. 

The first condition is evident. The second, which 
concerns public acts (de rebus agitur publicist, seems 
to refer to such rescripts as contain a favor to be used 
publicly. Such favors would be, for instance, privileges 
attached to a sanctuary or benefice, or a distinctive ec- 
clesiastical dress, or permission to collect alms. 21 The 
last condition evidently has reference to rescripts re- 
garding oratories, matrimonial dispensations, etc. 

As to the time within which rescripts must be pre- 
sented, canon 52 states : 



Can. 52 

■ 

Rescripta, quorum praesentationi nullum est defini- 
tum tempus, possunt exsecutori exhiberi quovis tem- 
pore, modo absit fraus et dolus. 

Rescripts for the presentation of which no defi- 
nite time is set, may be exhibited to the executor 
at any time, provided fraud and deceit are 
excluded. 



Note that this canon does not distinguish between 
rescripts of justice and rescripts of favor, 25 but embraces 
both kinds, provided only fraud and deceit be avoided; 
for fraud and deceit deserve no indulgence and are con- 
trary to the spirit of order. 



21 Cfr. c. 6, X, I, 3 concerning 22 Formerly rescripts of justice 

Cistercians, who may collect tithes had to be presented within a year 
without heeding an apostolic rescript, from the date of receipt; the Code 
unless mention is made therein of makes no distinction between the 
that privilege. two speclca of rescripts in this re- 

tard. 



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CANON 53 141 

o 

THE OFFICE OF EXECUTOR 

We said above that it is the rule io choose an " execu- 
tor " to investigate the matter and persons demanding a 
rescript. Certain duties, therefore, are incumbent on the 
executor, who may become the cause of grave mistakes 
which render a rescript invalid. Therefore the follow- 
ing canons more closely describe the functions of the 
executor. 

Can. 53 

Rescripti exsecutor invalide munere suo fungitur, 
antequam litteras receperit earumque authenticitatem 
et integritatem recognoverit, nisi praevia earundem 
notitia ad eum fuerit auctoritate rescribentis trans- 

missa. 

in 

The executor of a rescript acts invalidly if he 
acts before he has received the letters and de- 
termined their authenticity and integrity, unless 
he has been previously informed of their contents 
by authority of the grantor. 

Hence, as soon as the executor has received the docu- 
ment, he must look at the signature and the seal, to 
ascertain whence it came; for this is to establish au- 
thenticity. Then he may peruse the contents, assuring 
himself that nothing substantial is wanting and that 
all the necessary papers are included. After that he will 
determine the subject-matter or nature of the case. Then 
he must carefully ponder over the clausulae, which con- 
tain certain conditions for the executor as well as the 
petitioner. Before he has done all this the executor 
cannot validly proceed to carry out the rescript, unless he 



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142 GENERAL RULES 

has been informed by telegraph, telephone or other means 
as to the contents of the document. This information 
must come from the grantor or an official connected with 
the grantor. Xext he must ascertain from the clausulae 
whether he is an exsecutor necessarius or voluntarius. 
Thus, e. g., " si const it erit " or " constito tibi," " conscicn- 
tiam tuam oneramus,'* u etc., are indicative of an exsecu- 
tor voluntarius (or at least mixtus), whilst the absence of 
such clauses permits one to presume that he is merely an 
exsecutor necessarius, i. e., one who simply delivers the 
rescript. However, even if he is an exsecutor necessarius 
and cannot refuse the granting of the favor, circum- 
stances may be such as to cause him to withhold the 
execution. Three cases only are enumerated. 

Can. 54 

§ i. Si in rescripto comrnittatur merum exsecutionis 
ministerium, exsecutio rescripti denegari non potest, 
nisi aut manifeste pateat rescriptum vitio subreptionis 
aut obreptionis nullum esse, aut in rescripto appo- 
nantur conditiones quas exsecutori constct non esse 
impletas, aut qui rescriptum impetravit adeo, iudicio 
exsecutoris, videatur indignus ut aliorum offensioni 
futura sit gratiae concessio ; quod ultimum si accidat, 
exsecutor, intermissa exsecutione, statim ea de re cer- 
tiorern faciat rescribentem. 

§ 2. Quod si in rescripto concessio gratiae exsecutori 
comrnittatur, ipsius est pro suo prudenti arbitrio et 
conscientia gratiam concedere vel denegare. 



sa This clausula fs not, properly follow the dictates of legal justice, 

speaking, conditional, but intended but it also signifies that tb executor 

to render the executor cautious. It cannot subdcletrate his office. Cffr. 

means that tfae business is commit- Barbosa. Trartatui Varii, de clausu- 

ted to the prudence of an honest lis t cl. 24, p. 274. 
man with common sense, who must 



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CANON 54 143 

§ i. If a rescript commissions the executor 
merely to carry out its terms, he is not allowed to 
refuse to do so, unless it is evident that the re- 
script is void in consequence of a subreptio or 
obreptio, or the executor is satisfied that the con- 
ditions appended to the rescript are not fulfilled, 
or if the petitioner, in the judgment of the ex- 
ecutor, is so unworthy of the favor granted 
that the grant would prove offensive to others; in 
the last-mentioned case the executor should not 
proceed to execute his commission but immedi- 
ately notify the grantor. 

§ 2. If the granting of a favor is committed 
to the executor, the latter may either grant or 
deny it, according to his prudent judgment and 
conscience. 



As to the first point : The executor is supposed to 
know the circumstances of the petitioner, e. g., in matri- 
monial dispensations, and as a rule it is not difficult for 
him to judge whether or not the truth has been concealed. 
Obreptio and subreptio are mentioned, hence the exec- 
utor is bound to investigate the existence or absence of the 
reasons alleged. 

As to the second point, it will be noticed that the 
conditions must be fulfilled at the time of the execution, 
but nothing is said about the future. Hence all the 
conditions for a private oratory, for instance, must be 
previously complied with, whereas, in a rescript for a 
mixed marriage the future fulfillment of the conditions 
need not concern the executor. 



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144 GENERAL RULES 

As to the third point, it may be noted that the position 
of the executor may become very ticklish because of 
the vagueness of the term indignus (unworthy). If we 
speak of one being indignus in an election, we mean 
that he lacks the required qualities. Perhaps a more 
reliable standard is furnished by a comparison with 
the refusal of administering the sacraments to " indigne 
petentibus." An " indignus " in the sense of our canon 
therefore is probably a public sinner. 24 The grant may 
be offensive to the faithful or to others, to whom it might 
give an occasion to belittle the Church. If that be the 
case, the executor is bound to postpone the execution and 
inform the grantor. 

If the executor is a voluntarius, i. e., may either grant 
or refuse the favor according to his good judgment and 
conscience, all depends upon him and he must bear 
the consequences of his action. There is one notable 
consequence attending such a form of commission, viz., 
that the rescript expires with the death of the executor. 20 

Can. 55 

Exsecutor procederc debet ad mandati normarn, et 
nisi conditiones essentiales in litteris appositas im- 
pleverit ac substantialem procedendi formam serva- 
verit, irrita est exsecutio. 

The executor is obliged to proceed as if he had 
received a mandate, and unless he shall have ful- 
filled the essential conditions laid down in the 
rescript, and followed in substance the required 

24 A notorious Freemason, or a of imdigni. 

persecutor of the Church and hlcr- Sfi " Arbitrium cxpirat mortc illiuB, 

trchy, a conevbmurius publtcxs, all qui illntl habet " ; cfr. Barbosa, claus. 

these would fall under the category n, p. 364. 



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CANON 56 145 

form of proceeding, the execution is invalid. 



A man&atum, broadly speaking, is a rescript by which 
a superior commands or prescribes something. There 
are two kinds of mandatum which may here come into 
question : the mandatum apostolicum, used in the pro- 
vision or conferring of benefices, and the mandatum pro- 
curatorium, by which one is made procurator or empow- 
ered to act as proxy. 2 * The latter is here to be consid- 
ered, and what is said in general about a mandate of 
proxy applies to the present case, and therefore the ex- 
ecutor must observe the form of the mandate. This he 
does if he grants neither more nor less than is expressed 
in the rescript, e. g., if the rescript permits a seculariza- 
tion ad tempus, the executor cannot grant it in perpetuum. 
He must furthermore observe the limits of the mandate as 

SI 

to persons, time, and conditions." Finally, in rescripts 
of justice, the executor must follow the summary pro- 
cedure explained in Book IV. 



Can. 56 

Exsccutio rescriptorum quae forum externum respi- 
ciunt, scripto facienda est. 

c 

-1 

The execution of rescripts which affect the ex- 
ternal forum must be made in writing. 



Can. 57 

§ 1. Rescriptorum exsecutor potest alium pro suo 
prudenti arbitrio sibi substituere, nisi substitutio pvo- 
hibita fuerit, aut substituti persona praefinita. 

ZS Keifienstuel, I. 3, 21; I, 38, tin. "quia paria sunt, non habere man- 
72 fl ; de procuratonbui. datum vel non serrate formam roan- 

27 Barbosa, /. c, Axiom* 144: dati.'* 



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146 GENERAL RULES 

§ 2. Si tamen fuerit electa industria pcrsonae, exsc- 
cutori non licet alteri committere, nisi actus praepara- 



tonos. 



§ 1. The executor of a rescript may, if he 
prudently judges fit, appoint another in his place, 
unless such substitution is forbidden or some 
other person has been designated. 

§ 2. If, however, an executor has been chosen 
by reason of his personal qualities, he may not 
delegate his office to another, but only the pre- 
liminary acts. 

Can. 58 

Rescripta quaelibet exsecutioni mandari possum 
etiam ab exsecutoris successore in dignitate vel officio, 
nisi fuerit electa industria personae. 

A rescript may be executed by the successor in 
dignity or office of the original executor, unless 
the latter had been appointed on account of his 
personal qualities. 

Since the code mentions no special reason for not at- 
tending personally to the affair, it is left to the executor 
to delegate another. Thus a Bishop may give general 
permission to his Vicar-general or Chancellor to attend 
to such matters unless such action is either expressly or 
implicitly forbidden ; for it may be that a law does not 
allow the Ordinary to give such a general permission, 
which cases will be noted in the course of this com- 
mentary. Besides, if the executor is chosen for his per- 
sonal qualities, e. g., his knowledge or acquaintance with 



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CANON 59 147 

the case and the persons involved, or for peculiar merit, 
substitution is not permissible. The same holds good con- 
cerning the successor in dignity or office. Dignity hete 
means jurisdiction and precedence, not merely dignitaries, 
for such do not succeed one other. Whether the term 
office is to be taken in the general sense of an ecclesiastical 
office, or in the stricter sense of oflicium, which implies 
neither jurisdiction nor precedence but only administra- 
tion, is not stated, but the text seems to indicate the latter. 
Hence, e. g., the custodian of a cathedral church or the 
secretary or chancellor of a Bishop, are officials to the 
practical intent of this canon. 28 



". 



Can. 59 

§ 1. Exsecutori fas est, si quoquo modo in rescrip- 
torurn exsecutione erraverit, iterum eadem exsecutioni 
mandarc. 

§ 2. Quod attinet ad taxas pro rescriptorum exsecu- 
tione, servetur praescriptum can. 1507, § 1. 

§ 1. If an executor has made a mistake of 
any kind in the execution of a rescript, he has the 
right to repeat the execution. 

§ 2. As regards the fees for the execution of 
a rescript, canon 1507, § 1 must be observed. 



The fees for the execution of rescripts are governed by 
well-defined rules for each ecclesiastical province, which 
rules are prescribed by the Holy See, to whom also is 
reserved the approbation of taxation laws to be followed 
in a province (can. 1507). 



28 Cfr. Barbosa, Tractatus Vorii, ter is looked upon as 8 p ersonatus 
Appellatio 126, p. 269; the cuatos (cf, Book II, on cathedral chapters). 
of a cathedral or collegiate chap- 



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148 GENERAL RULES 

RECALL AND CESSATION OF RESCRIPTS 

The effect of a rescript — except it be a mere faculty 
— generally lasts forever or at least as long as the 
reason for which the petition was made. But it may be 
revoked. Hence 

Can. 60 

§ 1. Rescript um, per peculiarem Super ioris actum 
revocatum, perdurat usque dum revocatio ei, qui illud 
obtinuit, significetur. 

§ 2. Per legem contrariam nulla rescripta revocantur, 
nisi aliud in ipsa lege caveator, aut lex lata sit a Su- 
periore ipsius rescribentis. 

§ i. If a rescript is revoked by a special act 
of a superior, it does not lose its validity until 
the revocation has been duly intimated to the 
petitioner. 

§ 2. No rescript is recalled by a contrary law, 
unless the law expressly so provides, or unless 
it is given by the superior of the one who granted 
the rescript 

Can. 61 

Per Apostolicae Sedis aut dioecesis vacationem 
nullum eiusdem Scdis Apostolicae aut Ordinarii re- 
scriptum perimitur, nisi aliud ex additis clausulis ap- 
pareat, aut rescriptum contineat potestatem alicui 
factam concedendi gratiam peculiaribus personis in 
eodem expressis, ct res adhuc Integra sit 

A rescript does not lose its force by reason of 
the vacancy of the Holy See or of a diocese, unless 



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CANON 61 149 

the contrary appears from the respective 
clausulae, or unless the rescript conveys the power 
of granting a favor to particular persons ex- 
pressly named therein, and the matter has not yet 
been made the subject of litigation. 



A rescript might be repealed by the issuing of another 
rescript, but unless the second rescript mentions the for- 
mer as abolished, the former rescript remains in force. 
Here the act of repeal is not express and explicit and 
must be formally intimated to the petitioner or owner 
of the rescript. However, a sort of tacit recall is ad- 
mitted, vis., by a contrary law, which must expressly men- 
tion the rescripts recalled or must have been issued bjr 
the superior of the one who issued the rescript. This 
latter clause evidently refers to the Pope in regard to a 
Bishop who may have granted a rescript, and means that 
the Sovereign Pontiff may cancel a rescript issued by an 
Ordinary. But here the rules of interpreting laws must 
be applied. The canon properly speaks of expiring re- 
scripts. It was formerly held that rescripts of justice 
expired with the death or resignation of the grantor, re 
adhi'.c Integra. But canon 61 makes no such distinction, 
and hence a rescript does not become extinct by the death 
of the pontiff or bishop who gave it. An exception is 
made when there is a clause signifying the intention of 
the grantor to concede the favor granted only during his 
life-time or for a certain limited period. Clausulae of 
that kind would apparently be the following: "usque ad 
beneplacitxtm nostrum," " usque ad bene placi turn Sedis 
Apostolicae" "donee revocavero." The first clausula 
would extinguish a rescript 2S at the death of the grantor, 

29 Cf. c s, 6°, I, 3; cf. can. 73; the opinion of Laurcntius, Inst. 



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but the second ("usque ad benep. S. Ap.") would not, 
because the Apostolic See does not die; 30 nor does the 
last (" donee revocavero "), according to weighty authors, 
extinguish the rescript, because, they say, a positive act 
is required for the repeal of a rescript, 31 an opinion 
which seems to be supported by canon 60, § i . 

The other condition under which a rescript elapses at 
the death of the grantor consists in the direct faculty 
given to the executor to grant a favor to specially named 
persons. For in that case the executor acts as procurator, 
— at least this seems to be the underlying principle, — 
who has received a special mandate, which naturally ceases 
with the death of the mandaiis, unless the business has 
taken a juridical turn (res ad hue Integra) and the juridi- 
cal stage has been reached, if citations or summons 
have been legally issued or the parties have spontaneously 
appeared before the judge, or in this case, before the ex- 
ecutor. 82 

The last canon of this title, which certainly has been 
dealt with liberally in our Code, says that if a rescript 
contains a privilege or dispensation, the rules for privi- 
leges and dispensations laid down in the following canons 
must be observed. 

a 

rl 

Can. 62 

Si rescriptum contineat non simplicem gratiam, sed 
privilegium vel dispensationem, serventur insuper 
pracscripta canonum qui scquuntur. 

If a rescript contains, not a simple favor, but a 



luris Ecct. t n. 096, is destitute of 402; Retffenstuel, I, 3. n 263. 

foundation. 81 Cf. can. 1725, which settles the 

•o Cf. c. 5, 6°, I, 3. controversy about the moment when 

n Cf. Barbcsa, /. c, claus. 43, p. a matter ceases to be integra. 



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CANON 62 151 

privilege or dispensation, then besides [the rules 
laid down in the preceding canons] the regula- 
tions established in the following canons must be 
observed. 



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TITLE V 
ON PRIVILEGES 



A special class of laws is that dealing with privileges. 
A privilege ( priiilegium, lex private) may be defined as 
" a more or less permanent concession made by the legis- 
lator against (or beyond) the law." 1 

A privilege is a law, and hence falls under the power 
of the legislator only in so far as he can establish laws. 
If a privilege contains a concession which the law 
prohibits, it is a privilege against the law. If a privi- 
lege grants a right beyond what the law has already 
granted, it is said to go beyond the law (proeter jus), as 
e. g. t the privilege of absolving from reserved cases. 
Properly speaking only a privilege against the law is truly 
a privilege, 2 though faculties are justly enumerated among 
the privileges beyond the law (can. 66, § i). 



HISTORICAL NOTE 

h 

It is evident that the theory of privileges must have de- 
veloped apace with the practice of the Roman See. 
Though privileges were granted and revoked by the popes 
before the great collections of ecclesiastic law were made, 
the doctrinal exposition of privileges began with Gratian. 8 
In a famous dictum the Magister solves the objection 
raised by the necessity of strictly observing the canons of 
councils and the decrees of popes as follows : The 



i Ci. tit. 33, bk. V, Decretal-, and 2 Rciffenstuel, i. e., n. 8. 

the commentators thcreun, foi in- » Cf dictum ad c. 16, C. 1$, q. i; 

stance, Engel, Rciffenstuel, and c. 30, C. 11, q. 1; c. 4, C 24, q. 1. 
Suarcz, De Legibus. 



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CANON 63 153 

Roman Church has the authority to establish laws, but 
she is not bound by them, because she is the head and 
support {caput et cardo) of all the churches, and all laws 
have attached to them the implicit clause, "salvo jure 
sanctae Rotnanae Ecclesiae." Hence if privileges are 
granted which apparently are against the common law, 
they do not clash with the right of the Church, because all 
privileges are reserved to her. From this point of view it 
followed, of course, that no privilege would be granted ex- 
cept for the honor and utility of the Church, and that priv- 
ileges were revocable. Gratian's teaching was an innova- 
tion only in so far as this principle had not been laid down 
in any law-book before him. But in substance it simply 
embodied the practice which the Roman Court had fol- 
lowed for about a century. As the papal power developed 
under the protection of St. Peter," the theory of privi- 
leges assumed a more detailed and definite form. This 
was the case especially in the eleventh and twelfth cen- 
turies. 4 We must add that in course of time clerical 
privileges and exemptions to a great extent lost their 
original character of privileges and became, as it were, 
part and parcel of the common law. 

DIVISION OF PRIVILEGES 

Manifold is the division of privileges. It will suffice 
for our purpose to note the following : 

a) A personal privilege is one granted to a person for 
a reason inherent exclusively in that person, e. g., the 
wearing of the cappa magna or purple skullcap, if given 
not to the office but to the person. A real privilege is one 
attached to a thing, place, office, or dignity; e. g., the 
privilegiutn altaris or a privilege given to a sanctuary. 

* Cf. Saeymuellcr in the T&b. Quartolrchrift, 1907, p. 93 fl. 



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154 GENERAL RULES 

A mixed privilege is one granted to a corporation or 
society or confraternity as such. 

b) A favorable privilege is one containing a mere 
favor, without prejudice to a third person. An odious 
privilege is one involving prejudice or detriment to an- 
other, e. g., freedom from taxation or tithes. 

c) Privileges are granted in various forms, either in 
writing or by word of mouth, either motu proprxo or by 
petition, either absolutely {per se) or ad instar. A privi- 
lege granted in writing is always safer. A written docu- 
ment is required where injury to another is involved, un- 
less an orally granted privilege can be proved by wit- 
nesses. Otherwise an oral privilege may be used per- 
sonally as long as no legitimate authority or injured third 
party demands proof (can. 79). 

d) A privilege given absolutely or per se is one granted 
without respect or reference to pre-existing privileges. A 
privilege ad instar refers directly to a pre-existing pat- 
tern. Thus, e. g., most of the privileges granted to re- 
ligious and confraternities are ad instar. 



ACQUISITION OF PRIVILEGES 

A privilege being a law in favor of private persons, 
proceeds from the same power as the law. Hence the 
Sovereign Pontiff can grant privileges against the com- 
mon ecclesiastical law, but not against the natural or 
divine law. It matters little, per se, whether he concedes 
these privileges in writing or orally (vivac vocis oraculo), 
directly, i. e., absolutely, or indirectly, i. e. r ad instar, for 
he has the power to choose the mode of granting privi- 
leges. Hence the first canon of this title declares that 
privileges may be obtained both by direct concession and 
communication and through legitimate custom or prescrip- 



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CANON 63 155 

tion, and that centennial or immemorial possession 
creates a presumption in favor of a privilege. 



Can. 63 

§ z. Privilegia acquiri possunt non solum per direc- 
tum concessionem competentis auctoritatis et per com- 
municationem, sed ctiam per legitimam consuetudinem 
aut praescriptionem. 

§ 2. Possessio centenaria vel immemorabilis inducit 
praesumptionem concessi privilcgii. 



§ I. Privileges can be acquired not only by 
direct concession on the part of legitimate au- 
thority and by communication, but likewise by 
legitimate custom or prescription. 

§ 2. Centenary or immemorial possession of 
a privilege is a presumption in favor of its genu- 
ineness. 

There is, then, a threefold way of acquiring ecclesiasti- 
cal privileges: by direct concession on the part of a com- 
petent authority (pope or bishop), by communication, 
and by prescription. 

The first is evident and needs no explanation. 

Communication means partaking of a privilege either 
by extension or by aggregation (per connectionem). 
Thus if a confraternity is aggregated to an archcon frater- 
nity, it shares the privileges of the latter. A privilege 
may be acquired also by explicit application, the privi- 
leges granted to some being expressly conceded to others 
in the same manner, measure and form, yet with the 
erTect that the latter grantees enjoy these privileges ab- 
solutely and independently of the former. This is called 



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156 GENERAL RULES 

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Q 

k'ommnnkatio plena et absoluta, or aeque principalis, 
whilst the former is communicatio imperfecta et relativa 
or accessor ia. A complete and absolute communication 
of privileges formerly took place between all mendi- 
cant orders. Excepted from communication are the so- 
called u exorbitant " privileges and such as are styled 
" incommunicable." * 

The third method of acquiring a privilege is by custom 
or prescription. This has been the general teaching of 
canonists, based on a famous decretal of Innocent III. 
In this decretal the words " contraria consuetude " oc- 
cur,' and, since all canonists insisted on prescription, they 
simply said: " privileqium potest acquiri praescriptione 
seu consuetudine legitime praescripta." T This opinio 
communis receives, as it were, official sanction in the 
present canon. 

The length of time required for prescription must be 
measured according to canons 27 f.. quoted above; it is, 
besides, determined more closely by § 2 of can. 63. 

Possession here means, not only actual occupation but 
the right of possessing a thing. 8 Such possession lasting 
for a century or time immemorial creates a presump- 
tion that the privilege is real and authentic. This pre- 
sumption, not being further described, is to be taken 
as a simple praesttmptio juris, which must cede to truth if 
conclusively disproved. Thus, e. g., if it be proved that 
regulars who have held a parish for forty or more years, 
never obtained a privilege to that effect, the Bishop can 
claim the parish for the secular clergy. 






I Only if a Pull contains the Btillarium Cong. Angl. O.S.B., 191', 
words, *' eliam incommum'cabilia," pp. 5 ff. 

ire ihese privileges Included; sec. 8 C. ij, Novit, X, II, 1 dc judi- 

t. g.. ibe Const, of Urban VIII, dls. 
" riantata," of July ia, 1633, in the ? Reiffenstuel, V, 33, n. 39. 

8 " Detentio rei corporis et animi 



et juris admin iculo." 



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CANON 64 157 

The legislator now turns to the second mode of acquir- 
ing a privilege, which is more subject to abuse. 

Can. 64 

Per communicationem privilegiorum, etiam in forma 
acque principalis ca tantum privilegia impcrtita cen- 
sentur, quae directe, perpetuo et sine speciali relatione 
ad certum locum aut rem aut personam concessa 
fuerant primo privilegiario, habita etiam ratione capa- 
citatis subiecti, cui fit communicatio. 

In the communication of privileges, even that 
called aeque principalis, only those privileges are 
included which were imparted to the original 
grantee directly, forever, and without special 
relation to a certain place, thing or person, and 
with due consideration of the capability of the 



receiver. 



Evidently the Code wishes to clear up the nature of 
communicatio, especially as espoused by religious orders; 
yet, in the main, it adopts the ancient solid doctrine. 
Privileges which were not directly granted cannot be 
communicated. This provision is perhaps new, but it is 
wholesome, for otherwise privileges might be claimed 
over which the legislator has no control, and unduly 
multiplied. Religious orders under this canon cannot 
by communication claim a privilege which was already 
granted to another order by communication. However, 
this law is not retroactive, and hence the orders may 
retain what they possess, except where the Code rules 
differently. 

A privilege, to be communicable, must have been 



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158 GENERAL RULES 

a 

granted forever. Therefore spiritual favors granted ad 
quinquennium, e. g., are not communicable. 8 

Lastly, privileges granted to particular persons, places, 
or things cannot be transferred to others. For instance, 
the privilege of wearing a purple skullcap, given on ac- 
count of personal merit and distinction, the privilege given 
to a special sanctuary or to a particular altar or sacred 
object, are incommunicable. 

Note, too, that the persons or subjects to whom a com- 
munication of privilege is made, are capable thereof only 
in so far as their condition and position render them apt. 
Thus nuns (monklcs) are not capable of enjoying all 
the privileges granted to monks or regulars, e. g. f that 
of preaching, absolving, etc., although they may be capa- 
ble of others. 

The following canon determines the extent of a com- 
municatio accessoria (ad instar) ; 



Can. 65 

Cum privilegia acquiruntur per communicationem in 
forma accessoria, augentur, imrninuuntur vel arnit- 
tuntur ipso facto, si forte augeantur, imminuantur vel 
cessent in principali privilegiario ; secus si acquirantur 
per communicationem in forma aeque principali. 

Privileges acquired by communication in forma 
accessoria, are increased, diminished or lost to 
the second grantee in proportion to their increase, 
decrease, or loss in the original grantee; which 
rule is not, however, to be applied to the communi- 
catio absolute or aeque principalis. 

9 Cf. Ant cuius de Spiritu S-, Ord. Carm., Directorium Rtgmlor., tract. I, 

disp. i, lectio 3, a. 42. 



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CANON 66 159 

Hence, if an archconf raternity loses a part or all of its 
indulgences, they are also lost to the aggregated con- 
fraternities. This rule does not hold good in the com- 
munication of religious orders, wherefore, if one re- 
ligious community were suppressed, another, which had 
received a privilege from it by communication, might con- 
tinue to enjoy the same. 

FACULTIES 

A special canon treats of faculties, which term here 
means certain rights denied by common law but granted 
by special privilege. It follows from the nature of a 
faculty that it can be given only by one who can modify 
the common law. This one is primarily the Pope, though 
bishops also may grant faculties concerning matters sub- 
ject to their legislation. 10 Since the sixteenth century 
special faculties were granted chiefly to the German bish- 
ops, and classified in certain formularies, pro foro extertio 
and pro foro interno, quinguennales and triennales, and 
for a determined number of cases. 11 Their object is as 
wide as ecclesiastical discipline itself, and comprises es- 
pecially dispensations, absolutions, and licenses for per- 
forming acts otherwise prohibited by law, e. g. f reading 
forbidden books. 

The Code says with regard to these faculties: 

Can. 66 

- 

§ i. Facilitates habituales quae conceduntur vel in 

10 For instance, hearing confea- rails, 1917. p. 1081 fl. Theoe fac- 
lion*, preaching, etc. ulties, His Excellency the Apoi- 

11 Cf. Patzer. Comment in tolic Delegate. Most Rev. J. Bon- 
Facvlt, apost,, 1897, ed. 4. — For the zano, had the kindness to inform the 
formularies containing the faculties author, are extraordinary, and there- 
granted to the bishops of the U. S. fore liable to modification or repeal. 
see Sabetti-Barrett, Tktol. Mo- 



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i6o GENERAL RULES 

perpetuum vcl ad praefinitum tempus aut ccrtum 
numerum casuum, accensentur privilcgiis practer ius. 

§ 2. Nisi in earum concessione electa fuerit industria 
personac aut aliud cxprcsse cautum sit, facilitates 
habituales, Episcopo aliisve dc quibus in can. 198, § 1 
ab Apostolica Sede concessae, non evanescunt, rcso- 
luto iure Ordinarii cui concessae sunt, etiamsi ipse eas 
exsequi coeperit, sed transeunt ad Ordinarios qui ipsi 
in regimine succedunt; item concessae Episcopo com- 
petunt quoque Vicario Generali, 

§ 3. Concessa facultas secumfert alias quoque potes- 
tates quae ad illius usum sunt necessariae; quare in 
facultate dispensandi includitur etiam potestas ab- 
solvendi a poenis ecclesiasticis, si quae forte obstent, 
scd ad effectum dumtaxat dispcnsationis consequendae. 

§ i. Habitual faculties, granted for ever, or 
for a limited time, or for a definite number of 
cases, are reckoned among privileges beyond the 
law. 

§ 2. Unless they were conceded for personal 
reasons, or unless the law provides otherwise, 
habitual faculties do not expire with the authority 
of the Ordinary (or others; see can. 198, § 1) to 
whom they have been granted by the Apostolic 
See, even though he may have begun to execute 
them, but pass over to those who succeed him in 
office; faculties granted to the Bishop are in- 
tended also for the Vicar General. 

§ 3. A faculty implies all the powers neces- 
sary for its exercise; hence the faculty of dis- 
pensing includes the faculty of absolving from 



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CANON 66 161 

censures, if necessary, but only for the purpose 
of receiving the dispensation. 



As to § I note: Habitual faculties are those which are 
commonly granted to bishops either for a certain time or 
for a limited number of cases, and are, as it were, con- 
comitants of the episcopal office. As they are num- 
bered among privileges, the rules of interpreting privi- 
leges must be applied to them, ceteris paribus. 

As to § 2 : These habitual faculties do not expire with 
the cessation of the Ordinary's term of office, but continue 
in his successors, and the faculties granted to the Bishop 
are also given to the Vicar General, unless the Bishop (or 
others to whom the faculties were given) was selected for 
this honor on account of personal qualities. The name 
" Ordinary " is applied to diocesan bishops, each for his 
territory, to Abbots Nullius, and to the Vicars-general of 
both, to Apostolic Vicars and Prefects, and to the Su- 
periors of exempt religious. 12 The successor of the Or- 
dinary to whom a faculty was granted, may complete the 
execution thereof which the predecessor had begun, e. g., 
by calling witnesses, issuing summonses, etc. 

As to § 3 : A faculty, if given, grants the use of all 
the means necessary for its application, and hence the 
faculty of dispensing includes the power of absolving 
from censures, when necessary ; but only for the 
purpose of rendering the subject capable of receiving 
the dispensation. Therefore, e. g., an excommunication 
or suspension or personal interdict is, de facto, suspended 
only here and now, whilst conditions added to the cen- 
sures for the case of real absolution remain. 



izCfr. can. 198 and the declara- " locorum " {■ added, the superiors 
tion of the Holy Office of Feb. to, of exempt orders are not included. 
1888; when the term "loci" or 



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162 GENERAL RULES 

interpretation of privileges 

Can. 67 

Privilegium ex ipsius tenore aestimandum est, nee 
licet illud extendere aut restringere. 

A privilege must be interpreted according to 
its wording or purport, and must be neither ex- 
tended nor restricted. 

Can. 68 

In dubio privilegia interpretanda sunt ad normam 
can. 50; sed ea semper adhibenda interpretation, ut privi- 
legio aucti aliquam ex indulgentia concedentis videan- 
tur gratiam consecuti. 

In case of doubt privileges must be interpreted 
in accordance with can. 50, but in such a way that 
those who have received the privilege always re- 
tain some favor from the good will of the grantor. 



The interpretation of privileges follows the general 
rules of interpretation, as stated above, and especially 
that of rescripts. The principal rule is that the wording 
or purport (tenor) of the text must be duly consulted. 
Neither an extensive nor a restrictive interpretation of 
privileges is admissible. Where a doubt exists, the rule 
given in can. 50 must be applied, but in such a way that 
some privilege or favor remains. 

Can. 69 

■ 

Nemo cogitur uti privilegio in sui dumtaxat f avorem 

concesso, nisi alio ex capite exsurgat obligatio. 

< 

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CANON 70 163 

granted to him solely for his own benefit, unless 

an obligation to that effect should arise from some 

other source. 

Can. 70 

Privilegium, nisi aliud constet, censendum est per- 
petuum. 

A privilege is perpetual, unless the contrary is 
evident 

A doubt may arise as to whether a privilege is purely 
personal, or real, or mixed. Such doubts can be solved 
by examining the subject-matter and the wording of the 
privilege. The purpose or scope of a privilege is, as a 
rule, obvious. If it is not clear whether the successor of a 
personally privileged Ordinary, e. g., the successor of an 
abbot, has the use of a certain privilege, the address of the 
document should be examined. If the name of the 
grantee appears first, and his dignity second, the privilege 
must be regarded as merely personal. Where the dignity 
is mentioned first, the privilege may be taken as real and 
is consequently transferable to the successor in the same 
dignity or office, unless the wording of the text excludes 
this interpretation. " 

The Code adds, " nisi alio ex capite exsurgat obligatio," 
thereby no doubt referring to the so-called personal privi- 
leges of the clergy which cannot be renounced by the indi- 
vidual. It may also be that the fulfillment of a precept 
would urge, for instance, hearing Mass in a private 
oratory, 14 or absolving or dispensing, etc. Unless the 
contrary is clearly expressed, a privilege lasts for ever. 

a 

liCfr. Eneel, V. 33. n. 4- 

14 Laurentius, Inst. Juris Bed., 1903, p. 247. 



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164 GENERAL RULES 






LOSS OF PRIVILEGES 



Although its nature would seem to spell perpetuity, a 
privilege may be lost, either by law, or lapse, or renuncia- 
tion, or by one's own fault. 



Can. 71 

Per legem generalem revocantur privilegia in hoc 
Codicc contenta; ad cetera quod attinet, aervetur 
praescriptum can. 60. 

A general law repeals the privileges contained 

in this Code; otherwise can. 60 concerning the 

recall of rescripts must be applied. 

Oi 

D 

Formerly a certain class of privileges was called 
" clausa in corpore juris " and sometimes * priinlegia in 

1/1 

corpore juris clauso," which signified those privileges con- 
tained in the Corpus Juris." In like manner the privi- 
leges contained in the New Code, e. g., clerical, religious, 
and real, form a special class, and as such may be abol- 
ished by a general law issued by the supreme lawgiver. 

■ 

Can. 72 

§ 1. Privilegia cessant per renuntiationem a compe- 
tente Superiore acceptatam. 

§2. Privilegio in sui tantum favorem constituto 
quaevis persona privata renuntiare potest. 

§ 3. Conccsso alicui communitati, dignitati, locove 
renuntiare privatis personis non licet. 

§ 4. Nee ipsi communitati seu coetui integrum est 
renuntiare privilegio sibi dato per rnodum legis, vel si 



15 The authors, however, did not only the three authentic collection*, 
agree as to -what constituted the others including the Decrctum and 
" Corpus Juris," some admitting the Ex trava games. 



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CANON 74 165 

renuntiatio cedat in ecclesiae aliorumve praeiudicium. 

§ i. Privileges cease by renunciation if the 
renunciation is accepted by the competent su- 
perior. 

§ 2. A merely personal privilege may be given 
up by any private person. 

§ 3. A privilege granted to a community, dig- 
nity, or place cannot be renounced by private per- 
sons. 

§ 4. Nor is the community or congregation 

(society) itself free to renounce a privilege 

granted by way of law, or if its renunciation 

should cause a prejudice to the Church or to 

others. 

For a commentary on this point see p. 167, infra. 



Can. 73 

Resoluto iurc concedentis, privilegia non exstin- 
guuntur, nisi data fuerint cum clausula: ad beneplaci- 
tum nostrum, vel alia aequipollenti. 

Privileges are not extinguished even if the 
grantor goes out of office, unless they contain the 
clause : ad bcneplaciium nostrum, or some other 
clause of like import 

A clause of like import would be, e. g. f " durante ponti- 
ficate." 

Can. 74 

a 

Privilegium personale personam sequitur ct cum 
ipsa exstinguitur. 



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166 GENERAL RULES 

A personal privilege follows the person to 
whom it has been granted and expires with that 
person. 

Here a note may be allowed as to the first clause. 
While it is true that the personal privilege cleaves, as the 
canonists say, to the bones of the person, the use of such 
a privilege may. be limited or perhaps subject to the con- 
sent of another. Thus, e. g., the wearing of the Cappa 
Magna is granted to some abbots not in virtue of 
their office, but to the person, and hence is restricted to 
their own churches. 

Can. 75 

Privilegia realia cessant per absolutum rei vel loci 
interitum; privilegia vero localia, si locus intra quin- 
quaginta annos restituatur, reviviscunt. 

Real privileges cease upon the complete de- 
struction of the thing or place, whilst local 
privileges revive if the place is restored within 
fifty years. 

This enactment is of great importance for churches and 
monasteries, which, though the new proprietors or occu- 
pants have no relation whatever with the former, can 
enjoy their privileges without an act of renewal, if only 
a record be kept of the time of ruin and restoration. Of 
course it is understood that the restored places serve the 
same purpose as before, — the purpose for which, or in 
view of which, the privilege was given. 

Renunciation of a privilege (as dealt with in canon 72, 
su[>ra) is the voluntary giving up of a privilege ac- 



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CANON 75 167 

j 

quired. 10 This is permissible because, as a rule, everyone 
is at liberty to relinquish his own rights. 17 However, to 
be effective, renunciation must be accepted by competent 
authority. Hence 

§ 1 says that privileges cease by renunciation if the lat- 
ter is accepted by the competent authority, which is none 
other than the grantor or his legitimate successors. 

According to § 2, a merely personal privilege may be 
surrendered by any private person. The reason is be- 
cause such privileges are supposed to affect the holder ex- 
clusively. 

§ 3 declares that a privilege granted to a community, 
dignity or place cannot be renounced by private persons. 
It follows that the superior of a community, or a religious, 
or a clergyman cannot renounce such a privilege, e. g., of 
exemption or the privilegium canonis and fori. 1 * 

§ 4 provides that not even a community or congrega- 
tion is free to renounce a privilege if it has been granted 
by way of law, or if its renunciation would cause a preju- 
dice to the Church or to others. A privilege granted by 
way of law is one contained in the Code, e. g. t clerical 
exemption, immunity. Such a privilege cannot be re- 
nounced, even if the community by common consent, or 
an assembly by general assent or a majority of votes, 
were ready to give it up. It is also forbidden to renounce 
a privilege, even though not contained in the Code, if 



Q 



18 " Resoluto juris concedentis " isCfr. c. la, X, II, a; c. 36, X, 

{rcscribentis. ferentis legem) is an V, 39; c. 5, X, I, 43: "Cum etsi 

expression often occurring in the sponte volueris. de jure tamen ne- 

Code, and it of general purport, quiver!*, sine lieentia Rom. Pnnti- 

including every kind of cessation of ficis reruinciare privileges vel in- 

offii c 1 y death, resignation, trans* dulgentus libcrtatis, quae mona- 

fer. exchange, suspension, or dene- sterium illud indicant ad jus et 

sition. proprietatem Rom. Ecclesiae per- 

17 C. 6, X, V, 33. tinere." 
< 



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168 GENERAL RULES 

giving it up would result in detriment to the Church or 
others, e. g., the faculty of binating or absolving from 
reserved cases. On the other hand, a community or 
chapter may give up such privileges as have become more 
or less useless or of little importance. 19 A sort of tacit 
renunciation seems to be what canon 76 calls non-usus 
or contrary usage. 

Can. 76 

Per non usum vel per usum contrarium privilegia 
aliis haud onerosa non cessant; quae vero in aliorum 
gravamen cedunt, amittuntur, si accedat legitima 
praescriptio vel tacita rcnuntiatio. 

By non-use or contrary use a privilege which 
is not injurious to others does not cease; but a 
privilege that is burdensome to others loses its 
force by legitimate prescription or tacit renun- 
ciation. 

It may be useful to recall the distinction between an on- 
erous and a non-onerous privilege. The former causes a 
burden or damage to others, e. g., collecting tithes or 
alms, whilst the privilege of eating flesh-meat on certain 
days cannot be called injurious to others (except perhaps 
to the cook or the treasury). 

There is also a difference between prescription and 
tacit renunciation. Prescription means a certain space 
of time, say forty years, during which ( the privilege has 
not been made use of, although there was occasion for 
using it. Tacit renunciation means that one has know- 
ingly and willingly performed an act contrary to the privi- 

i» Cfr. c 8, X f I, 2 de const. 



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CANON 77 169 

a 

lege, either negatively by not using the privilege when one 
should have used it, or positively, by doing the contrary 
to that which the privilege entitled one to. 20 The canon 
says that only onerous privileges, namely, such as follow 
the jus patrouatus or right of presentation, cease by non- 
use or contrary use. 21 



Can. 77 

Cessat quoque privilegiura, si temporis progressu 
rcrum adiuncta sic, iudicio Superioris, immutentur ut 
noxium evaserit, aut eius usus illicitus fiat; item elapso 
tempore vel expleto numero casuum pro quibus pri- 
vilcgium fuit concessum, firmo praescripto can. 207, 

§ 2. 



A privilege also ceases if in course of time con- 
ditions change to such a degree that, in the judg- 
ment of the superior, the privilege becomes harm- 
ful or its use illicit; or if the time for which the 
privilege has been granted expires, or the number 
of cases for which it was given is full; without 
detriment, however, to canon 207, § 2. 

This canon states what is self-evident "under regula 
juris 61 in 6°: " quod ob gratiam alicuius conceditur, non 
est in cius dispendtum retorquendum." In can. 207, § 2, 
the forum internum is excepted from the rule here laid 
down. 



■"■ 



Can. 78 
Qui abutitur potestate sibx ex privilegio permissa. 



ao Cf. Rciffcnatucl, V, 33, nn. pore vobis dctrahcre voluistis." The 

«oi ff. length of time i» not expressed, but 

si Ci. c. 6, X, V. 33- " De forty years may safely be assumed, 
privilegio laincn indulto tanto tern- 



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170 GENERAL RULES 

privilegio ipso privari mere tur ; et Ordinarius Sanctam 
Sedem moncrc nc omittat, si quis privilegio ab eadem 
concesso gravitcr abutatur. 

Whoever abuses the power granted to him by 
a privilege, deserves to be deprived of the privi- 
lege itself; and the Ordinary shall not fail to 
notify the Apostolic See if anyone grievously 
abuses a privilege granted to him by the same. 

The wording of this canon leaves no 4oubt that abuse 
does not, eo ipso, annul a privilege, but only after a sen- 
tence issued by the Apostolic See. 22 By the name of " Or- 
dinary " is meant not only the diocesan Ordinary and his 
Vicar General, but the superior of exempt religious. 
On the other hand, it is also true that certain crimes are 
stated and singled out in the law itself as attended by the 
loss of certain privileges, e. g., if one commits a crime in a 
church, presuming on immunity, or fails to wear the cleri- 
cal dress, of which more loco suo. 

The last canon on privileges treats of privileges granted 
vivae vocis oraculo, i. e., by word of mouth. 

Can. 79 

Quamvis privilegia, orctenus a Sancta Sede obtcnta, 
ipsi petenti in foro conscientiae suffragentur, nemo 
tamen potest cuiusvis privilegii usum adversus quem- 
quam in foro externo vindicare, nisi privilegium ipsum 
sibi concessum esse legitime evincat. 

Although privileges orally granted by the Holy 
See, may be used by the grantee in the internal 

22 Of. c. 7, Dist. 74 (Greg. M.) ; touch upon time or place or persons 
c. 24, X, V, 33; the abuse may exceeding the limits thereof. 



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CANON 79 171 

court of conscience, no one should claim their 
use against another in foro externo, unless he 
can prove that the privilege was legitimately 
obtained. 



For example, I know of a religious who received 
from Pius X, of happy memory, the privilege of reciting 
the Breviary, when traveling, according to the rubrics 
used at S. Anselmo. Tin's privilege was given orally, and 
consequently touches the conscience rather than the 
forum externum. A privilege for the forum externum 
(e. g. t one granted to an order against the jurisdiction of 
the Ordinary) requires proof. Hither belong the Con- 
stitution "Romanus Pontifex," of Gregory XV, of July 
2, 1622, and that of Urban VIII, " Alias," of December 
20, 1631, which abrogated all vivae vocis oracula both 
in foro interno and externo, except those obtained by the 
petitions of sovereigns and cardinals. The new Code 
admits the existence and use of orally given privileges, as 
long as conscience alone is concerned; but in justiciable 
cases such a privilege cannot be alleged, unless proven by 
witnesses. What witnesses are required? The Code 
does not specify, but we believe that the testimony of the 
cardinal-protector of a religious order, or any other 
cardinal, would be sufficient proof of the privilege hav- 
ing been granted by the Holy See. 23 (Can. 239, § 1, 

[ 17) 

In order to complete the subject of privileges, we may 
be permitted to add a few words on a topic which the 
Code does not explicitly treat, namely, the confirmation or 
ratification of privileges. A privilege may be ratified in 
forma communi or in forma specifica. Confirmatio in 

28 Cfr. Reiffenstuel. \\ 33. nn. 149 S- 



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172 GENERAL RULES 

forma communi leaves the value and valor of a privilege 
in statu quo, without determining whether the privilege 
is valid or invalid, and hence adds no juridical force 
either to the first or second grant. Confirmatio in forma 
specified is given after mature consideration of the privi- 
lege in case, and is executed cither by verbal insertion of 
the former privilege or by using the clausulae : " ac si 
de verbo ad verbum inserta fuissent" or "ex certa 
scientia." In this latter case the confirmation gives jurid- 
ical value to the privilege and is tantamount to a new 
valid concession ; and the new grantee enjoys the privi- 
lege, even if the former should lose it. 

Note, also, that privileges are sometimes granted es- 
pecially by way of communication, or ratified with the 
clausula " dutnmodo " or " quatenus sunt in usu." This 
means that the grantor does not wish to ratify or grant 
anew by corroboration a privilege which has been lost by 
non-use or contrary usage, or for another reason. 



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TITLE VI 
ON DISPENSATIONS 



It is natural that a society spread over the whole globe 
and comprising members of the most diverse types living 
in different climes and under various conditions cannot 
apply the law with equal rigor at all times and in all cir- 
cumstances. Even in the first four centuries of her exist- 
ence the Church was compelled to mitigate the strictness 
of her penitential discipline. This is briefly and appro- 
priately expressed by Abbo of Fleury (died 1004) : 

1/1 

" We must take into consideration the situation of coun- 
tries, the character of the times, the frailty of men, and 
other reasons which of necessity change the laws of dif- 
ferent provinces. The same is true concerning papal de- 
cress, which are of such authority that many judges 
expect the verdict of the Roman Pontiff. In these 
things, therefore, utility and equity (utilitas ct honestas) 
must prevail, but not the enticing enjoyment of desires." 1 
The same idea recurs in the prologue to the Decretum 
of Yvo of Chartres (died 1115). He, too, reduces the 
reasons for granting dispensations to two — utility and 
necessity, and compares the Church to a crew who throw 
merchandise over hoard in order to save the ship. 2 Gra- 
tian did not go further, for all his texts are taken from 
Yvo. 5 



1 Collectio CunoHum, c. VIII 2 Prolcij. in Decretum (Migne, 

(Mignc, ij9. 4 8 J>. which is un- 161, 47 ff.). 

touched by Pseud o- laid orlan influ- a Cfr. c. 56, Dist 50; c. 41, C. 

ence». 1, q. 1; c. 16, G. i. q. 7 

173 



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i 7 4 GENERAL RULES 

That with the outward growth of the papacy the power 
of papal dispensation also increased, goes without saying. 
Hence it cannot surprise us that Innocent III (1196- 
1216) said that " the fullness of power confers the right 
of dispensation." * Some bishops and provincial synods 
also exercised the right of dispensation, although in a 
limited way. Before Gratian's time, this power touched 
an accomplished fact rather than something to be done in 
future, although even this latter species of dispensation 
{super faciendum) was not entirely unknown. Dispen- 
sation came to comprise cases of simony, celibacy (espe- 
cially the ftlii presbyterorum), irregularities, vows, and 
above all matrimonial cases.* The Council of Trent en- 
acted into law what Abbo and Yvo had taught, — that a 
dispensation should be granted only for urgent and just 
reasons, for the greater utility of the faithful, and after 
previous deliberation and cognizance of the case. 6 We 
shall now see what the new Code has to say on the sub- 
ject 

Can. 80 

Dispensatio, scu legis in casu speciali relaxatio, con- 
cedi potest a conditore legis, ab eius succcssore vel 
Superiore, nee non ab illo cui iidern facultatem dis- 
pensandi concesserint. 



p 



A dispensation, L e., a relaxation of the law in 

a particular case, may be granted by the lawgiver, 

his successor or supe'rior, and by those to whom 

the faculty of dispensing has been delegated. 
There is a distinction between epikeia, so-called, or 

4 Cf. c. 4, X, III, 8. reeht im Kxrchcnrecht , 1901, Vol. I 

B Cf. Sliegler, Dispensation, Dis- {only one). 
peHsotionswison und Dispensations- 9 Trid., Seas. 25, c. iS de ref. 



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CANON 81 175 

a 

benign interpretation, which is related to equity, and a 
dispensation; for the latter is an act of jurisdiction flow- 
ing from the legislative and judiciary power, whilst the 
former is nothing more than either an interpretation or 
an excuse based on private judgment. Hence a dis- 
pensation presupposes legislative power, nay is, so to 
speak, coextensive with it. Therefore the Pope can dis- 
pense in all matters subject to his legislation, that is to 
say, in ecclesiastical, but not in divine laws. 7 The same 
power is vested in his successor, because he is his equal, 
and " par in parent non hahet imperium" But the Pope 
can also dispense from episcopal laws, for he is superior 
to the bishops. On the other hand a bishop may dis- 
pense from papal laws if he has received the necessary 
faculties from the Apostolic See. The same right be- 
longs to superiors of exempt religious orders. 

The Pope is not bound by the existence or validity of 
reasons, but can dispense validly without reason, although 
it is not to be presumed that he would proceed thus, since 
a dispensation is a sore on the law and should not be 
used for destruction. This is not the case with those in- 
fdrior to the Pope, hence canon 81 establishes the power 
of those inferior to the Roman Pontiff. 



Can. 81 

3 

A generalibus Ecclesiae legibus Ordinarii infra Ro- 
manum Pontifkern dispensare nequeunt, ne in casu 
quidem peculiari, nisi haec potestas eisdem fuerit ex- 
plicite vel implicite concessa, aut nisi difficilis sit re- 
cursus ad Sanctam Sedem et simul in mora sit pericu- 



7 A difficulty mizht arise from man. the Pontiff can, in virtue of 

vows and the tnalrimonium ritum; his vicarious power, render the 

but in such laws, the obliging force obligation ineffective. (Cfr. Wernz, 

ol which depends on the free will of /. c., I, a. t*2.) 



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176 GENERAL RULES 

lum gravis damni, ct de dispensation agatur quae 
a Scdc Apostolica conccdi solct. 

Ordinaries inferior to the Pope cannot dispense 
from the general laws of the Church, not even 
in a particular case, unless they have received 
that power either explicitly or implicitly, or in 
cases in which recourse to the Holy See is diffi- 
cult and there is at the same time grave danger in 
delay, and the dispensation requested is one 
which the Holy See is wont to grant. 

Two sources for dispensing, therefore, are open to the 
Ordinaries, either a communicated power or the nature 
of the case requiring dispensation. Explicit power is 
granted through faculties which now will probably be 
forwarded in certain formularies newly to be issued and 
communicated directly to the Ordinaries ; implicit power 
belongs to those who partake of the faculties by virtue 
of their office, e. g., Vicars General. Implicit concession 
is furthermore granted by the " caput Uceat " of the 
Council of Trent, 8 which empowers Ordinaries to dispense 
in all cases of irregularity and suspension which arise 
from a secret crime, with the exception of voluntary 
homicide and such crimes as have been brought before the 
episcopal court by citation. 

The class of cases mentioned in the second part of our 
canon may also be said to afford an ordinary reason for 
which those inferior to the Pope can dispense from the 
common law. 

Three conditions must concur to make a dispensation 
valid 9 and licit: recourse to the Holy See must be dif- 

8 Sess. 24, c, 6 de ref. queunt," which might be restricted 

B The canon simply says " ne- to licitness; yet because dispenaa- 



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CANON 82 177 

ficult, there must be danger of grave damage, and the case 
must be subject to dispensation. The concurrence of 
these conditions may especially be verified in matrimonial 
cases, but also in irregularities arising from a hidden de- 
fect or crime. By recourse to the Holy See is here un- 
derstood ordinary recourse, i. e.j by mail, not by tele- 
graph, which is an extraordinary means of communica- 
tion. A grave danger is present when escape is al- 
most, not entirely, impossible, and hence it is not neces- 
sary that it be a casus fortuitus, or unforeseen inci- 
dent. 10 How grave the danger must be, cannot be deter- 
mined by a general rule ; but scandal "or injury of reputa- 
tion would suffice to constitute a serious danger. Finally, 
the case must be one from which the Holy See is wont 
to dispense, for nothing is included in the general conces- 
sion which the superior is not likely to grant. 11 Hence, 
whatever is rare, extraordinary, unusual, or difficult to 
obtain from the Holy See, does not come within the 
sphere of episcopal power, for instance, irregularities in 
defectu corporis enormi. This is the viewpoint which 
the Ordinaries — and religious superiors also, for the 
canon does not add " loci " or " locorum " — must take in 
relation to the common law as contained in the Code. 

The next canon deals with the power of Ordinaries 
regarding diocesan laws and laws of provincial councils. 

Can. 82 
Episcopi aliique locorum Ordinarii dispensarc valent 

tionB must be strictly interoreted, atuel, Comment in Reg. luris; Put- 

and because " negatio plus tollit «r, L c, p. 36 C, enumerates still 

quam affirmiitio ponit," we believe ether cases, but with the exception 

that the interpretation given above is of dubium jurit or facti (cfr. can. 

correct. 15) these cannot now be admitted, 

10 Barbosa, Tractates Vara, p. because the Code is silent about 

378, p. ro8. them. 

liRegula juris in 6°; Reiffen- 



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178 GENERAL RULES 

a 

in legibus dioeccsanis, ct in legibus Concilii provin- 
cialis ac plenarii ad normam can. 291, § 2, non vera 
in legibus quas speciatim tulcrit Romanus Pontifex 
pro illo peculiari territorio, nisi ad normam can. 81. 



■ 



■"■ 



■--. 



Bishops and other diocesan Ordinaries can dis- 
pense from diocesan laws and from the laws of 
provincial and plenary councils, according to the 
rule contained in canon 291, §2, but not from 
laws specially given by the Roman Pontiff for 
that territory, except in conformity with canon 
81. 



There is a gradation in this canon as to the power of 
dispensing. Bishops can dispense from their own (dio- 
cesan) laws with or without reason, for of their own laws 
they are the lawgivers in the proper sense. The second 
class of laws referred to comprises those of provincial or 
plenary councils whose decrees are supposed, according 
to canon 291, to be recognized by the Holy See. From 
these the Ordinarii locorunt cannot licitly dispense ex- 
cept in particular cases and for just reasons. Now a 
particular case is one which occurs less frequently, and, 
generally speaking, touches single persons or parishes. 
For to dispense a whole diocese or province, if it should 
happen at stated or frequent intervals, would be a gen- 
eral not a particular dispensation. Thus to dispense 
the whole clergy would also be a general dispensation. 
Finally, the canon adds that the Ordinaries cannot dis- 
pense from particular laws given by the Holy See for 
that particular territory ; for instance, from the law gov- 
erning the nomination of candidates for vacant sees in the 
United States (S. C. Cons., July 25, 1916), or, perhaps. 



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CANON 82 179 

from the law regarding holy-days. The clause, however, 
permits dispensation in accordance with canon 81. 

Descending in the scale of the hierarchy the Code says : 

Can. 83 

Parochi nee a lege generali nee a lege peculiari dis- 
pensare valent, nisi haec potestas expresse eisdem con- 
ccssa sit. 

Parish priests can dispense neither from a gen- 
eral nor from a particular law, unless they have 
expressly received that power. 



N 



This text states an obvious truth, and at the same time 
deals a blow to a certain tendency which permitted pa- 
rochi ex cotisuetudine to dispense in several cases. 12 
For the law requires an explicit communication of that 
power. If parish priests need a dispensation from a gen- 
eral law, as embodied in our Code, the faculty must come 
from the Pope, either directly or indirectly through the 
Ordinary; if a particular law is to be dispensed from, a 
distinction must be made. If the law in question has 
been enacted by a plenary council, the habitual faculty 
of dispensing therefrom must be obtained from the Pope, 
either immediately or mediately, as in the case of the 
general law. For single cases, we believe, the bishops 
can without special faculties communicate the power of 
dispensing to their parish priests, for they have received 
this power by law (can. 291), and not from man. To 
dispense from merely diocesan laws depends exclusively 
on the bishop, who may therefore grant that faculty, either 
habitually or ad cerium numerum casnum, to parish 



ii Cfr. Putzer, /. c, p. 36, as to sttnence; servile work prohibited; 
dispensations from fast and ab- see can. 1245. 



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180 GENERAL RULES 

priests. However, it must be done expressly, either 
orally or in writing, and must not be presumed, for a pre- 
sumption is no express concession. 

After having determined the persons who may exercise 
the power of dispensation, the Code emphatically rein- 
forces the Tridentine decree concerning the causes of dis- 
pensation : 

Can. 84 

§ 1. A lege ecclesiastica ne dispensetur sine iusta et 
rationabili causa, habita ratione gravitatis legis a qua 
dispensatur; alias dispensatio ab inferiore data illicita 
et invalida est. 

§ 2. Dispensatio in dubio de sufficientia causae licite 
petitur et potest licite et valide concedi. 

§ 1. No dispensation from an ecclesiastical 

in 

law is to be granted without a just and reasonable 
cause, and due regard must always be had to the 
importance of the law from which the dispensa- 
tion is given; otherwise the dispensation given by 
an inferior is illicit and invalid. 

§ 2. When there is doubt as to the sufficiency 
of the cause, a dispensation may be lawfully 
asked for, and licitly and validly granted. 

The cause may be the motive or impelling reason, the 
former being the raison d'etre of the dispensation, 
the latter only an aid, or, as the Scholastics express it: 
the motive cause is "ad esse simpliciter" the impelling 
cause, " ad facilitts esse." Here the causa must be under- 
stood as the motive cause. 18 
- 

u If one reason is sufficient, two Tractates Varii, Axioma 197, /. c, 
reasons perhaps convince: " ritiones p. 130. 
duae vincunt unara." Barbosa, 



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CANON 84 181 

j 

Concerning the time when the causa must be verified, 
we refer to Can. 41 de rescriptis: If no executor is ap- 
pointed, the cause must exist at the time of granting the 
dispensation; if an executor handles the dispensation, 
the cause must be verified at the moment of his signature. 

- 

As to the nature of the cause, the Code says that it 
must be just and reasonable. Justice refers to law, which 
admits certain causes and rejects others. Thus a list of 
canonical causes is set up, e. g., for matrimonial dis- 
pensations. The cause must be reasonable because, as 
law pertains to reason, so also must a dispensation 
partake of reason. The judgment as to the latter qual- 
ity lies with the grantor. 

Furthermore there must be a proportion between the 
seriousness or importance of the law and the dispensa- 
tion, which is a vulnus legis. Hence for relaxing a 
serious law a serious and solid reason must be advanced ; 
a graver cause is required to dispense from a major im- 
pediment than from a minor. 1 * 

Besides, it is but just that the persons should be con- 
sidered for whom a dispensation is issued, because in- 
fluential persons are more important for the public wel- 
fare than ordinary mortals. 16 

Lastly, the circumstances must be considered, not only 
of persons, but also of consequences which might prob- 
ably follow, e. g., scandal, damage, injury, etc. If the 
reason alleged is not just and reasonable, the dispensation 
granted by an inferior is illicit and invalid. Notice 
that the canon does not say, as the Tridentine Decree did 
(Sess. 25, c. r8) that it is subreptitious ; hence there 
can be no longer any doubt as to the view taken by the 
Church. Therefore, if, after the application of a dis- 

14 Cf r. can. 104a f. II Cfr. Putier. I. c, p. 76 f. 



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182 GENERAL RULES 

pensation, the alleged cause is found to be without founda- 
tion, the dispensation is null and void (with the exception 
of can. 1054). 

§ 2 mitigates the apparent harshness of § 1, inasmuch 
as it declares that, if the sufficiency of the reason alleged 
is doubtful, the dispensation holds. 

The next canon treats of the interpretation of dispensa- 
tions. 

Can. 85 

Strictae subest interpretation! non solum dispensatio 
ad normam can. 50, scd ipsamet facultas dispensandi 
ad certum casuzn conccssa. 

Dispensations must be strictly interpreted, ac- 
cording to canon 50; also the faculty of dis- 
pensing granted for a certain case is subject to 
strict interpretation. 



In order not to repeat what has been said before, we 
only remind the reader of the rule that dispensations 
must never be extended to cases and persons not com- 
prised in the faculties, as will be further explained in 
matrimonial cases. But other dispensations, too, e. g. 
from vows, must be strictly interpreted ; thus the power 
of dispensing from vows does not include that of dis- 
pensing from oaths. Besides, the clausula? and the 
stylus Curiae must be closely observed. 10 Canon 85 
further mentions dispensations granted ad certum castttn. 
Here, a fortiori, extension of restriction is inadmis- 
sible, because no argument from dispositio similis can 
be drawn, e. g., if one receives the faculty to dispense 
a certain person, this cannot be applied to another, al- 
though he or she be similarly situated. 

i« Cf. Putter, I. c. t p. 12 f., p. 165 f. 



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CANON 86 183 

a 

The term " facultas " must be strictly interpreted in a 

determined case, for the general supposition is that there 

are personal qualities, as well as a mandate implied, which 

are subject to strict interpretation. The last canon treats 

of the cessation of dispensations. 



N 

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Can. 86 

Dispensatio quae tractum habet successivum, cessat 
iisdem modis quibus privilegium, nee non certa ac 
totali cessatione causae motivae. 

A dispensation which permits of successive ap- 
plication ceases the same way as privileges, and 
with the certain and complete cessation of the 
motive cause. 



What has been said concerning the manner in which 
privileges cease, must be applied here also, because habit- 
ual faculties are numbered among the privileges beyond 
the law (can. 66, § 1), and hence cease by renunciation, 
repeal, or the death of the grantor, if there is a clause that 
says so, otherwise not. To ask whether a dispensation 
can be lost by contrary usage and prescription seems, 
at first sight at least, silly. Yet a dispensation which 
permits of successive application {tractum successivum) , 
e. g. t eating flesh-meat, saying a " black Mass," etc., is 
not exhausted by one act and may therefore be forfeited, 
if contrary usage and an imperative act of the superior 
combine. Since the Code says that such dispensations 
lose their force in the same way as privileges, we must 
apply that disposition of the law also to the case in hand. 

Finally, the Code provides that if the motive cause 
ceases entirely and for certain, the dispensation also 
ceases. The two conditions (" entirely and for cer- 



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184 GENERAL RULES 

tain ") must be taken conjointly. For instance, if one 
has received a dispensation from the vow of chastity 
ad usum matrimonii on account of temptations, he may 
continue the use of marriage even after the cessation of 
these temptations, because there is no certainty. But if 
one has obtained a dispensation from reciting the Breviary 
on account of weak eyes, he cannot continue the use of the 
dispensation after his eyesight has been completely re- 
Stored. Taking into consideration can. 85, regarding 
a faculty given for a determined case, the dispensation 
last mentioned must be held to be exhausted after appli- 
cation, and is therefore negotium finitum. For it is gen- 
erally supposed that in such a case the faculty was given 
in forma mandati, which expires after application and 
admits of no extension or eptkia. 



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I A COMMENTARY ON 

THE NEW 

CODE OF CANON LAW 



By THE REV. CHAS. AUGUSTINE, O.S.B., D.D. 

Pnfus9r oj Canon La*w 



■ 



Volume II 
Clergy and Hierarchy 



THIRD EDITION 



R HERDER BOOK CO. 



n South Broadway, St. Loub, Ma 

AND 

68 Great Russell St. London, W. C 
1919 



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N 

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Cum Pfrwww Superiorum 



NIHIL OBSTAT 

SH. Ludovici, die Sept. 7, W* 

F. G. Holweck, 

Censor Librorum 



IMPRIMATUR 

SH. Ludovici, die Sept. 8, 1918 

•^Joannes J. GUnnon, 

Archie piscopus 

Sti. Ludovici 



Copyright, 1918 

by 
Joseph Gummersbach 

All rights reserved 
Printed in U. S. A. 



VAIl-MUOU COMPAKT 
ftUMNANTOM AMD «■!• ™"« 



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587678 




2 



TO 

THE BELOVED HXERARCH OF OUR DIOCESE 

THE RT. REV. MAURICE FRANCIS BURKE, D.D. 

BISHOP OF ST. JOSEPH, MO. 

THIS VOLUME IS RESPECTFULLY DEDICATED 

1893-1918 



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FOREWORD 

This second volume is dedicated to the Rt. Rev. 
Bishop M. F. Burke, D.D. (By mistake the dedication 
appeared in Vol. I.) On June 24, 1918, Msgr. Burke 
celebrated, amidst a gathering of the clergy, the silver 
jubilee of his episcopal career in our diocese. During 
this time our monastery as well as the author himself 
have enjoyed the most cordial and unruffled relations 
with the noble-hearted prelate. Wherefore it seemed ap- 
propriate to offer this book as a token of gratitude and 
esteem to his Lordship. 

A word may be added concerning the make-up of the 
Commentary. Semi-official notice received from Rome, 
in response to our inquiry, caused us to limit our work 
to a commentary proper, since translations into the ver- 
nacular are not only not desired by the authorities, but 
rather discouraged, nay, at least for the whole Code as 
such, forbidden. Therefore we had to embody the con- 
tents of the Code in the Commentary, and rendered the 
Latin text into English only when it seemed absolutely 
necessary, or where no commentary was needed. Some 
canons have been neither translated nor paraphrased be- 
cause the person concerned might have been offended by 
a translation or paraphrase. 



The Author 



Conception Abbey, Mo. 
July, 1918. 



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TABLE OF CONTENTS 



BOOK II. 
ECCLESIASTICAL PERSONS 

PACI 

Introductory — Persons in General i 

Domicile 12 

Blood Relationship and Affinity 19 

Various Rites 20 

Moral or Juridical Persons 23 

Ethical Qualities of Legal Acts (Vis, Metus, Error) 28 

Consent or Advice to be Asked by the Superior ... 34 

Precedence 36 

PART I. THE CLERGY 43 

Sect. i. The Clergy in General 43 

Title I. Incardlnation in a Diocese 50 

Title II. Rights and Privileges of Clerics ... 56 

The Prtvilegium Canonis 58 

The Prtvilegium Fori 59 

Personal Immunity 64 

Beneficium Competentiae 67 

Loss of the Clerical Privileges . 68 

Title IIL Obligations of Clerics 70 

Religious Duties 70 

Clerical Obedience 71 

Scientific Equipment of the Clergy 74 

Celibacy of the Clergy 77 

Divine Office (Breviary) 82 

Clerical Dress 84 

Occupations and Amusements forbidden to the Clergy 85 

Amusements 92 

Negotiatio Prohibita 95 

Absence from the Diocese 98 

Title IV. Ecclesiastical Offices 100 

Ch. I. Appointment to Ecclesiastical Offices . . 104 



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CONTENTS 

IAGB 

Art. I. Libera Collatio tog 

_ 

Requisites of Ecclesiastical Office Holders . .no 

Time of Appointment 112 

Incompatible Offices 113 

Art. II. Election 117 

1. Election of a Pope 117 

2. Election of Bishops 119 

Time and Convocation 123 

The Electors {Vox Act'wa) 127 

Balloting 134 

Compromise 139 

The Number of Votes Required 143 

Effect of the Election 143 

Devolution 147 

Art. III. Poatulation 148 

Ch. II. Loss of Ecclesiastical Offices . . . . 154 

Resignation 155 

Tacit Resignation 159 

Deprivation of Office 163 

Transfers 167 

Title V. Ordinary and Delegated Power . . . .170 

Ordinary Jurisdiction 171 

Delegated Jurisdiction 174 

Interpretation of Jurisdiction 177 

Extent of Jurisdiction 170 

Duties of Delegates 182 

Several Delegates 185 

Cessation of Delegated and Ordinary Jurisdiction . 187 

Power of Order 191 

Title VI. Return of Clergy men to toe Lay State . 193 

Sect. II. The Hierarchy 200 

The Local Organizations 200 

.Title VII. The Supreme Power and Those Who Par- 
take Thereof by Ecclesiastical Law .... 207 

Ch. I. The Roman Pontiff 207 

The Papal Titles and Insignia 214 

Ch. II. General (Ecumenical) Councils . . . 217 
Order and Authority of a General Council . . . 023 
Ch. III. The Cardinals of the Holy Roman 
Church 227 



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CONTENTS 

Office and Rank of Cardinals ....... 229 

Creation and Qualifications of Cardinals . . . .231 

Option 235 

The Sacred College as a Corporation 237 

Duties and Privileges of Cardinals 238 

Rights of Cardinals in Their Titles and Sede Va- 

cante 243 

Ch. IV. The Roman Court 246 

Art. I. The Sacred Congregations 250 

The Holy Office .250 

The S. Consistorial Congregation 252 

The S. Congregation of the Sacraments . . . 254 
The S. Congregation of the Council .... 256 

The S. Congregation of Religious 257 

The S. Congregation of the Propaganda . . . 259 

The S. Congregation of Rites 261 

The S. Congregatio Ceremonialis 262 

The S. Congregation for Extraordinary Ecclesias- 
tical Affairs 263 

The S. Congregation of Studies 263 

The S. Congregation for the Oriental Church . 264 
Art. IT. Tribunals of the Roman Court .... 265 

The Sacra Poenitentiaria . . 265 

The Rota and the Signatura 267 

Art. III. The Offices of the Roman Court ... 269 

The Apostolic Chancery 269 

The Apostolic Datary 270 

The Revercnda Camera Apostolica .... 271 

The Secretariate of State 272 

Authority of the Roman Court and its Decisions 274 
Ch. V. Legates of the Roman Pontiff .... 278 
Ch. VI. Patriarchs, Primates, Metropolitans . 286 

The Pallium 292 

Precedence . . 295 

Ch. VII. Plenary and Provincial Councils . . 207 

Plenary Councils 298 

Provincial Councils 300 

Conciliary Proceedings . •. 303 

Ch. VIII. Vicars and Prefects Apostolic . . .310 
Ch. IX. Apostolic Administrators 326 



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CONTENTS 

PAGI 

Ch. X. Inferior Prelates 331 

Title VIII. The Episcopal Power and Those Who 

Partake Thereof 340 

Ch. I. The Bishops 341 

Qualities Required in a Bishop 343 

Duties and Rights of Bishops 348 

Pontifical Functions . 356 

Residence . 358 

Missn pro Populo 361 

Reports to the Holy See 364 

Visitatio ad Limine 36s 

Diocesan Visitations 367 

Precedence . 375 

Titular Bishops 375 

Episcopal Privileges 375 

CH. II. COADJUTOHS AND AUXILIARY BlSHOPS . . . 378 

Rights of Coadjutors 380 

Residence 382 

Ch. III. Diocesan Synods 384 

Ch. IV. The Diocesan Court 391 

Art. I. The Vicar General 393 

Akt. II. The Chancellor and Other Notaries — 

The Episcopal Archives 406 

Custody of Archives 411 

Secret Archives 41J 

Other Archives of the Diocese 417 

Art. III. Synodal Examiners and Consultors . . 418 

Ch. V. Chapters of Canons 424 

The Canonicus Theologus and the Poenitentiarius . 43*> 

The Appointment to Canonicates 440 

Honorary Canons 441 

Insignia 444 

Statutes and Meetings 446 

Duties of Canons 449 

Rights and Privileges of Canons 455 

Ch. VI. Diocesan Consultors 463 

Appointment of Consultors 465 

Qualities and Obligations 466 

Ch. VII. Quasi-Vacancy and Vacancy op the Epis- 
copal Sra — The Vicar-Capitular .... 470 



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CONTENTS 

MM 

Vacancy Proper 474 

The Vicar-Capitular 480 

Qualities of the Vicar-Capitular 484 

Rights of the Vicar-Capitular 487 

Ch. VIII. Rural Deans 497 

Ch. IX. Parish Priests 505 

Incorporation 514 

Irremovable and Movable Pastors 517 

Appointment of Pastors 521 

Examination — Concursus 527 

Unity and Possession 534 

Rights of Parish Priests 5$ 

Duties of Pastors 543 

Obligation of Residence 545 

Application of the Mass pro Populo 549 

Particular Duties 55^ 

Care of the Sick and Charitable Works .... 554 
Parish Books and Archives 556 

Ch. X. Assistant Priests (Vicars) ..... 559 

Vicars Proper 559 

Vicars ad Interim 563 

Temporary Substitutes . » 567 

Assistants Proper . . 568 

Coadjutors 57r 

Removal 576 

Precedence of Assistants 577 

Ch. XI. Rectors of Churches 580 

Appendix. Episcopal Faculties 587 



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9 



a 



THE NEW CODE OF 
CANON LAW 

BOOK II 

ECCLESIASTICAL PERSONS 
INTRODUCTORY — PERSONS IN GENERAL 



Person (persona) physically signifies a being en- 
dowed with life, intelligence, free will, and individual 
existence. The Roman law, however, restricted its mean- 
ing to one capable of right (subjectum iuris capax), and 
slaves were not considered to be persons. 1 

Roman* and civil, as well as canon law, also know 
artificial or moral persons, i. e., such as are created by 
human law for the purposes of society and government 
(corporations or bodies politic).* Such a corporation 
may be called " e pluribus unum" as our coins express it, 
or a subject consisting of several physical persons. 

Three elements must combine to constitute a moral 
person or corporation: (a) a plurality of persons, ac- 
cording to the well known adage, " Tres faciunt colle- 
gium;"* (b) corporate rights embodied in the constitu- 



iCf. 4. /«'•/ If 1 6. The ■lave* ktutigen Reckts. ed. 5, P- 104. 

were called Awp^troiwoi or person- * Blaekatone-Coolcy, Commentary, 

lesa; cfr. Caatiodoriua, Variorum, I, 122. 

VI, 8 (Migne, 69, 689). 4 Ft. 85, Dig*, 50, 16; New Inter- 

a Dig., i, 5; Jnt; I, 3; Verlng, national Encyc, 1904, V, 4J (i - 
CescK *nd Pondekten d, torn, und 



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2 ECCLESIASTICAL PERSONS 

tion and pertaining to the members as such, i. e., because 

o 

they are members of the corporation; (c) legal acknowl- 
edgment or sanction. Only when these three conditions 
are verified, do we have a corporation in the proper sense. 
It is not amiss to add that the civil law does not create 
these corporations but finds and accepts them as products 
of the social life. 8 

English law distinguishes between corporations aggre- 
gate and corporations sole, the former being what we 
have defined above, whereas a corporation sole consists of 
one person only and his successors, incorporated by law 
in order to give them certain legal capacities and ad- 
vantages, particularly that of perpetuity, which in their 
natural persons they could not enjoy. In this sense the 
King of England is a corporation sole; so is a bishop; 
so are some deans and prebendaries, distinct from their 
several chapters; and so is every parson and vicar of 
the established Church. The U. S. acknowledge no 
ecclesiastical but various civil corporations. 

In order to construe a corporation, some authors re- 
sorted to a fictio iuris, which consists in the assumption 
or supposition of many physical persons as forming one 
body or person. There is no necessity whatever to main- 
tain this theory. For the sum-total of corporate rights 
embodied in the community which is represented by its 
legal head or manager is a reality in the realm of law 
no less than the persons endowed with those rights. 
The legal fiction theory results from a too material con- 
ception of right or law. 

But neither can the theory which takes the end or 
purpose of a moral person as the base and bearer of 
corporate rights, satisfy the inquirer after the constitu- 

Blackstone-Cooley, Commentary, o Zollmann, Am, Civil Church 

I. 47a. Law, 191 7, pp. 38 ff. 



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CANON ioo 3 

ent element of a corporation. The end indeed specifies, 
and gives coloring to, a corporation, but it cannot create 
or produce rights. The creation or production of rights 
must in the last analysis be attributed to human reason 
and will, whence every law arises, subordinate, of course, 
to the eternal law. 7 Therefore a corporation or legal 
community is the bearer of corporate rights and if not 
fully autonomous, only requires the sanction of the com- 
petent authority to actuate itself. 

Can. ioo 

§ i. Catholica Ecclesia et Apostolica Sedes moralis 
personae rationem habent ex ipsa ordina tione divina ; 
ceterae inferiores personae morales in Ecclesia earn 
sortiuntur sive ex ipso iuris praescripto sive ex spe- 
ciali competentis Superioris ecclesiastici concessione 
data per formale decretum ad finem religiosum vel 
caritativum. 

§ a. Persona moralis collegialis constitui non potest, 
nisi ex tribus saltern personis physicis. 

§ 3. Personae morales sive collegiales sive non colle- 
giales minoribus aequiparantur. 

This first paragraph sketches the charter of the 
Church founded by Christ. The following two estab- 
lish the relation of dependent corporations and societies 
to the Church. 

Here we might enlarge upon the constitution of 
the Church. However a brief summary must suffice to 
explain the necessary elements of that society which 
derives its origin from God. For a more elaborate ex- 
position we must refer the reader to fundamental theol- 
ogy and to that part of canon law which goes by the 
name of public ecclesiastical law, 

T Cfr. Bachofen, Summa Iuris EccL Pub,, 1910. P- 14 ft 

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4 ECCLESIASTICAL PERSONS 

The Catholic Church 8 claims a divine foundation, do- 
cause Christ, its Founder, came to establish the Kingdom 
of God, or the Kingdom of Heaven, which He embodied 
in the flock gathered by Him and placed upon the rock 
that was Peter, the prince of the Apostles. Here we 
find two essential elements of a corporation : a plurality 
of persons and corporate rights embodied in the visible 
head of the college or society. 

The most important and essential element of the 
Church, as of every other corporation, is the constitution, 
which determines the nature and purpose of the corpora- 
tion as well as the mode of organization and the rights 
of the members.- That constitution, in its essential fea- 
tures, was mapped out by God and hence is of divine 
origin. The nature and purpose of the Church is the 
same as that for which Christ was sent into the world, 
viz.: the establishment of the Kingdom of God. This 
end and purpose is plainly supernatural or religious. 
This does not mean, however, that the Church does not 
need natural, even material, means to realize its end. A 
corporation consisting of men composed of body and 
soul, who can be led to spiritual apprehension only 
through the medium of the senses, cannot forego ma- 
terial, bodily means. This is very palpable in the sup- 
port of ministers and external worship. 

To direct a society to the end for which it is instituted 
an authority is needed. For uniform, constant, and un- 
swerving direction of a multitude with many and differ- 
ent views and aspirations is impossible without some one 
having power to impose obligations and to distribute 
rewards. This authority Christ has built into the foun- 
dation of His Church, as it were, by conferring on St. 
Peter a supreme and indivisible power similar to that 

i See ibid., p. aa ff. 



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CANON ioo 5 

which He Himself enjoyed However, this power, in- 
divisible and supreme, was not the only one which the 
Lord imparted to His Apostles. Besides St. Peter He 
appointed others who should be heard and should rule 
portions of the flock. 10 These are the bishops (or se- 
niors) mentioned in the Acts of the Apostles. 

If Christ wished His Kingdom to be stable and perma- 
nent, He must have provided means of perpetuation and 
continuity. This He did by providing successors to St. 
Peter and the other Apostles. The Fisherman's Throne 
was erected above Peter's tomb, and ever since the Ro- 
man Pontiffs, viz., those who succeeded St. Peter in the 
see of Rome, were acknowledged as Vicars of Christ. To 
them, therefore, belongs in equal measure the supreme 
and indivisible power over the whole Church. Under 
them the bishops by divine institution rule their respective 
districts. This is the essential organization of the 
Church as far as its external constitution is concerned. 
Priests and ministers also share in the power of the 
hierarchy, but their jurisdiction, as such, does not com- 
prise external acts of a public nature. 

How is this power exercised? Through a threefold 
function, called legislative, judiciary, coercive. If we 
speak of a threefold power, we do not mean to dis- 
tribute it among various functionaries and bodies, as 
Montesquieu has done, but we consider it merely under 
various aspects or effects, which differ in procedure and 
execution. Thus legislation means the power inherent in 
the Supreme Pontiff to make laws for the entire Church ; 
judiciary power applies these laws by means of judgment 
and trials or simple decisions, whilst coercive or execu- 
tive power renders the law and its application effective 
< 

• Cir. Matt 16, 18; Luke a», 31; loCfr. Matt 18, 18; AcU jo, 2%, 

John It. 15. 



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6 ECCLESIASTICAL PERSONS 

and respected, whilst at the same time it conserves the 
public welfare and provides satisfaction for violations 
of the public order. 

A moral person endowed with such prerogatives is 
called a "perfect society" This term necessarily in- 
volves: (a) an existence independent of every other so- 
ciety, in other words, autonomy or sovereignty; (b) in- 
dependence of end or purpose; (c) independence in the 
attainment of end or pursuit of means proportionate 
to the end. 

The question arises : Are these conditions verified in 
the Catholic Church? What about the third requisite 
of a moral person, vis., legal sanction? If legal would 
mean only what the State sanctions, then the Church 
would have had no legal existence for more than three 
hundred years. But legal here means the natural right 
of existence. If God is the author of nature, and as such 
also of the State, He certainly enjoys power sufficient to 
give legal existence to a society which He Himself wished 
to found. The God of nature can not contradict the 
God of grace; neither does legal sanction given by God 
to the State exclude legal sanction given by the same God 
to the Church. When Constantine issued his edict of 
toleration 312-313, he did not legalise the Church, but 
merely acknowledged publicly what was due to her. 

Legal sanction accrues to the Church by virtue of her 
divine foundation. The Church is a moral person in 
the most perfect sense of that word. The plurality 
of members is shown in her catholic character, whilst 
unity is manifest from her constitution, which was set up 

expressly for the preservation of one faith and one rule or 

- 

government. In that same constitution is also included 
diversity of members. Not all the members of the 
Church are endowed with governing powers. There- 



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CANON ioo 7 

fore the Church is called a societas inaequalis, which 
implies different rights and obligations on the part of its 
members, — a distinction between the clergy and lay- 
men — between pastors and flock, between those who 
sanctify and those who are sanctified, between those who 
teach and those who are taught. 11 

Hierarchy in the strict sense means "a body of per- 
sons who enjoy ecclesiastical power in a different, grad- 
ually determined, degree." 12 Such is the case in the 
Catholic Church, of which can. ioo asserts that is a 
moral person. However, the Church forms a juridical 
person only in conjunction with the Roman Pontiff, be- 
cause without him it would lack one of its essential con- 
stituents. The Supreme Pontiff (Apostolic See) would 
form a moral person even if the entire body of the 
faithful would cease to exist — an unlikely hypothesis, 
which is here stated merely to illustrate the necessity 
of a supreme head. Without exaggeration we may say 
that the Pope is a corporation sole by virtue of his sov- 
ereignty, like the King under' English law. For this 
reason the Pope is said to have all laws in ventre,™ i. e., 
he combines the whole legislative as well as judiciary and 
coercive power in his own person. 

Besides the Church universal, or rather within it, 
there are other, inferior or minor juridical persons. As 
their purpose is subordinate to that of the whole Church, 
and they are therefore dependent on her with regard 
to the attainment of their end and the pursuit of the 
means leading thereto, these minor juridical persons nec- 
essarily owe their very existence to her. This is to be 
particularly emphasized from the legal point of view. 

it Cfr. Schema Cone. Vatic, &e Eccl., 9 36; Smith, Elements, I, p. 
Ecclesia Ckristi. c. 10. 83. 

12 Aichner, Compendium Juris i» Cfr c. I. 6°, I, 2 de Coaititut 



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8 ECCLESIASTICAL PERSONS 

For if such a subordinate corporation would renounce 
allegiance to the Apostolic See, i. e. t fall away from 
the Church, it would lose all its corporate rights, and 
consequently also its legal hold on church property, 
which would in that case belong to those members who 
remained faithful to their allegiance. 1 * 

Such inferior corporations, also called imperfect socie- 
ties, may come into existence and obtain a legal stand- 
ing in the Church either by law or by a formal decree 
of any competent superior. Legal consent is under- 
stood to be given for the formation of a diocese or ca- 
thedral chapter as soon as all the requisites are present. 
(On religious corporations see the next section.) 

The Code expressly mentions moral persons whose 
end is charity. Such charitable corporations can be 
juridical persons only if the physical persons constitut- 
ing them devote their time to charity, but do not them- 
selves live on charity for the sake of charity. Some 
ancient confraternities, e. g., the Brothers of Mercy 
and various guilds, were of such a character. An or- 
phanage, a hospital, etc., is not a juridical person in the 
strict sense ; it may be called a charitable institute, or 
pia causa, because those who partake of its benefits are 
not members with definite rights, but mere beneficiaries 
of charity. In these therefore the end or purpose may 
be said to be the subject of rights. 15 Paragraph 3 of our 
canon compares such inferior or subordinate corpora- 
tions and fellowships or societies in a wider sense to 
physical persons who are not yet of age (minors). The 



14 Cfr. Bachofen, Summa, p. 43 stinatarti (orphans, sick, etc.) are 

ff. the subjects of quasi-corporate 

IB Meurer, Dit Jurirtitchen Ptr- rights. Cfr. Bachofen, Summa, p. 

sontn, 1901, p. 21, contradicts our 26. 
exposition and holds that the da 



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CANON 87 9 

tertium comparationis is the dependence of both as to 
free and unhampered action (see can. 89). 

After this necessary explanation of the Church as a 
perfect juridical person or corporation in the highest 
sense, we now proceed with our commentary secundum 
ordinem. 

Can. 87 

Baptismate homo constituitur in Ecclesia Christi 
persona cum omnibus christianorum iuribus et omciis, 
nisi, ad iura quod attinct, obstct obex, ecclesiasticae 
communionis vinculum impediens, vcl lata ab Ecclesia 
censura. 

Baptism is the sacrament of initiation, " the sacrament 
of Christian grace," the " receiving of Christ's livery," ,fl 
concerning which more is said in the third book of the 
Code. 17 The effect of baptism consists in obtaining cer- 
tain rights and assuming certain obligations. These are 
partly general, partly particular. All Christians have the 
same general rights and obligations with regard to spir- 
itual favors and aids to salvation. 18 But not every Chris- 
tian is obliged to embrace the clerical or religious state, 
although all who are called to it have a right to enter 
that state. In this respect the Catholic Church is truly 
democratic. 

It would be wrong to hold that children, when they at- 
tain the use of reason, have a right to decide whether or 
not they wish to keep their baptismal vows. 18 One who 
by formal heresy or schism or apostasy rends asunder the 
bond that unites him with the Church, is yet bound by 

i« Cfr. Coustant, Epistolat RR. 10 Cfr. Cone. Trid,, Sew. 7, c. 8, 

Pont., 1721, pp. 8?5i 545. 5SO- M de bapt; Pohle-Preuu. Tht Sae- 

it Cfr. Canon 737 B. roments, 1015, II, 273 ff. 



is Cfr. Canon 68a. 



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io ECCLESIASTICAL PERSONS 

St 

the obligations resulting from his baptismal vow. Again, 
one who commits a crime upon which the penalty of ex- 
communication (censura) has been laid by law or inflicted 
by legitimate authority, loses his rights until absolution is 
obtained, but his obligations remain. 20 



■ 



Can. 88 

§ i. Persona quae vicesimum primum aetatis annum 
explevit, maior est; infra hanc actatem, minor. 

§ 2. Minor, si masculus, censetur pubes a decimo- 
quarto, si femina, a duodecimo anno completo. 

§ 3. Impubes, ante plenum septennium, dicitur in- 
fans seu puer vei par vulus et censetur non sui compos ; 
expleto autem septennio, usum rationis habere prae- 
sumitur. Infanti assimilantur quotquot usu rationis 
sint habitu destitute 

English and American law agree in fixing the age of 
minors at from fourteen to twenty-one. 21 Between these 
two termini lie the years of discretion, wherefore minors 
are capable of some, but not of all, legal actions. A 
margin is left to premature malice (" malitia supplet 
aetatem"), sothat the limit, like the one from the seventh 
to the fourteenth (or twelfth) year, is only proximate or 
presumptive. 22 

Concerning infants 29 the same term "censetur" is 
employed, which involves supposition and not absolute 
certainty; hence, even after the seventh year the use of 



20 Cfr. Hciner, Kircktnrtcht, 23 Infantes dicuntur qui fori nt- 

1897, I, 125 ff. The disjunction in sciuni, i. e., who are speechless; cfr. 

the canon is only apparent, for by Cicero, D* Diinnattone, I, 53: cfr. 

heresy, etc, one to ipso incurs 1. 18, Cod. Just., VI, 30; 16, •&., 1. 

censure. 3» V, 60. Cfr. Canon 1254, fi 1 1 

ai Itlackitone-Cooley, /. c, I, 463. Ulpian, Frag., tit. XI; Lachmaon, 

22 Cfr. Canon 1254, fi 2. Caii Institution., 1841, p. 138 ff. 



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CANON 89 n 

reason is only "presumed." Presumption must, of 
course, always cede to proven facts. Hence, if a boy 
or girl of seven is by medical attestation proved to be 
destitute of reason, all acts performed by him or her 
are null and void before the canon law. On the other 
hand the age-limit of seven is not so strict that infants 
could not share in the benefits which the law grants to 
such as are "compotes sui" even if they have not yet 
reached the seventh year, provided they actually enjoy 
the use of reason. But this is only to be understood with 
regard to favors. Thus, e. g., infants, even though they 
enjoy the use of reason, are not obliged to fast if they 
have not yet attained the seventh year. 2 * 

Can. 89 

Persona maior plenum habet suorum iurium exerci- 
tium; minor in exercitio suorum iurium potestati 
parentum vel tutorum obnoxia manet, iis exceptis in 
quibus ius minores a patria potestate exemptos habet. 



The Code makes no distinction between the sexes, 
hence males and females are considered equally capable 
of legal action after they have attained the age of twenty- 
one. 86 Minors enjoy habitually or radically the same 
rights as those of age, but are hampered in their enjoy- 
ment because they depend on parents or tutors. This 
disability, as Blackstone well observes, is in fact a privi- 
lege, because it prevents children from hurting themselves 
by their own acts. 28 The Code adopts this universal 
principle by placing minors under the tutelage of parents 



24 Cfr. can. 1254. married. Cfr. Blacksionc-Coolej", I, 

25 The earlier Roman law con- 463. 

ndered a woman of age only when 2fl Cf. Hciffenstuel. Ill, 38, n. 38; 

Blackstone-Cooley, I, 464. 



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12 ECCLESIASTICAL PERSONS 

and guardians, at least in certain cases. Thus we shall 
see that minors, except in certain cases, are incapable of 
electing or of being witnesses. They may be presented 
for a benefice, but only through their tutors. 27 They are 
exempt from observing the law of tutelage in choosing 
their vocation (clerical or religious state) as also in mar- 
rying, provided, however, that they have reached the age 
of puberty. 

The new Code does not distinguish between tutor and 
curator, although in Roman law this distinction was 
made; a tutor was given to infants or impubores, whilst 
a curator was assigned to puberes until they were of age. 28 
However, this distinction is juridically unimportant. 

We may observe that, although the Code has ecclesias- 
tical laws in view, the civil laws, too, in as far as they do 
not clash with those of the Church in the matter of 
tutelage or guardianship, must be observed and may be 
followed in conscience ; for instance, in deeds and con- 
tracts and in the alienation of land. 20 



domicile 



The term domicilium is derived from dotnum colere, 
to foster or inhabit the home. Hence it has reference 
primarily to the place where one is born, Place (locus) 
was taken by the Roman lawyers in a very narrow sense, 
viz., as a place or parcel of a larger property, called 
fundus, upon which one's affection was supposed to be 
especially centered. 80 Analogously, domicile, too, was 
restricted to the birthplace or origin or legal status which 
the citizen was supposed to possess in virtue of his belong- 



*7 Blackstone-Cooley, 1,464. iignificatione; " Iocui est aoa fun- 

2§ Cf. Dig., 16. 5; Cod. Just., V. dus. sod portio aliqua fundi.*' 

42; V, 33- MCfr. Dig., 1. c; Cath. E*c„ V, 

2u Cf. 1. 60, Dig. 50 de verborum 103. 



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CANON 90 13 

ing to a determined municipality or city. This was, we 
say, supposed, because even if born elsewhere, a man was 
a citizen of the municipality in which in the natural 
course of events he would have been born. Hence, the 
son shared the domicile of his father. Now let us see 
what the Code establishes concerning domicile. 

Can. 90 

§ 1. Locus origin is filii, etiam neophyti, est ille in 
quo, cum Rlius natus est, domicilium, aut, in defectu 
domicilii, quasi-domicilium habebat pater vel, si filius 
sit illegitimus aut postumus, mater. 

§ 2. Si agatur de filio vagorum, locus originis est ip- 

semet nativitatis locus ; si de exposito, est locus in quo 

inventus fuerit. 
s 

The Roman Law is here again followed. The canon 

applies it not only to children but also to neophytes, i. e., 
persons baptized as adults, 81 although such were supposed 
to have their legal domicile in the place of baptism. 
Concerning illegitimate children, the old law is fol- 
lowed entirely; but an innovation appears to be intro- 
duced concerning posthumous children, i. e., such as are 
born after the father's death. These are put on a level 
with the illegitimate, which seems rather strange, be- 
cause the civil law treats them as equals of legitimate 
children and entitled to share in all their rights. Per- 
haps this was assumed to make sure of the birthplace of 
the child. 82 Paragraph 2 restates the law as contained in 
the Constitution " Cupientes " of Paul III. 

Can. 91 
Persona dicitur: in col a, in loco ubi domicilium, 



Q 



ai Cone. Nic.. c. a (c 1, Dirt. 48). 32 Cfr. Dio., 28. a; Cod. J'tst.. VI. 

MPaul III, "Cupuntts," ai 19. 
March, 1543; cfr. Aicbner, fi 6a. 



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14 ECCLESIASTICAL PERSONS 

advena,™ in loco ubi quasi-domicilium habet; pere- 
grinus, si versetur extra domicilium et quasi-domici- 
lium quod adhuc retinet; vagus, si nullibi domicilium 
habeat vel quasi-domicilium. 

Can. 92 

§ z. Domicilium acquiritur commoratione in aliqua 
paroecia aut quasi-paroecia, aut saltern in dioecesi, 
vicariatu apostolico, praefectura apostolica ; quae com- 
moratio vel coninuncta sit cum animo ibi perpetuo 
manendi, si nihil inde avocet, vel sit protracta ad 
decennium completum. 

§ 2. Quasi-domicilium acquiritur commoratione uti 
supra, quae vel coniuncta sit cum animo ibi manendi 
saltern ad maiorem anni partem, si nihil inde avocet, 
vel sit reapse protracta ad maiorem partem anni. 

§ 3. Domicilium vel quasi-domicilium in paroecia vel 
quasi-paroecia dicitur paroeciale; in dioecesi, vicari- 
atu, praefectura, non autem in paroecia vel quasi- 
paroecia, dioecesanum. 



The definition of domicile is partly taken from the 
Code of Justinian, where we read: "Doubtless every 
incola has his domicile where he has established his 
house-goods, the bulk of his chattels and property, and 
which he does not intend to abandon unless called else- 
where, which he leaves as traveller and to which he re- 
turns after ceasing to travel." 85 This is the famous 
definition which, at least tacitly, had always been ad- 
mitted by canonists and was enlarged after the twelfth 
century by the notion of quasi-domicile. 



83" Advena est quern graeci cyel., V, 103. Ttai» is one of the 

AirotKav appellant," i. e., one ab*eut best articles in matteri of Canon 

from home. (I. 239, Dig., 50, 16). Law contained in that valuable 

84 L. 7, Cod. X, 40 de incolis. reference work. 

Clr. Boudinhon in the Caih. En- 83 Boudinhon, L c. 



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CANON 92 15 

The difference between a domicile and a quasi-domi- 
cile 80 consists first and above all in the intention. If one 
has the intention to reside, for instance, in a parish for- 
ever, he contracts a domicile from the very first day of 
his stay in the same. Of course, in the case of ordina- 
tion, he would have to make oath to that effect. This 
intention is supplied by actual residence for ten full 
years. 

Note that one and the same person may have two domi- 
ciles, for instance, a summer and a winter residence; for 
the intention in that case is equally directed to both, 
and perhaps the time almost equally divided between 
both." 

Quasi-domicile is determined by the intention of abid- 
ing in a place for the greater part of a year, which is gen- 
erally taken to be at least six months. 38 although in com- 
mon estimation seven months is properly speaking the 
greater part of a year. One's stay may be morally, but 
it must not necessarily be physically, continuous. In 
other words, a man may be absent from his domicile for a 
considerable time, say, two or three months each year, 
without losing his domicile, provided, of course, his in- 
tention to stay there forever is not changed. But one 
who has only a quasi-domicile may not be absent from it 
for more than five months, because quasi-domicile re- 
quires a stay of at least six months in a year in one and 
the same place. But an absence of a few days each 
month would not interrupt his quasi-domicile, as long 
as he has not given up the intention of remaining in the 
place at least six months. 

What surprises us, to some extent at least, is the as- 



MCfr. L 6, $2, Dig. 50, i, ad 9 Nov., 1898. Bened. XIV, " Pau- 

municipalem. eta," March 19, 1758. Students and 

■7 Cfr. decree of the Holy Office, soldieri have such a quasi-domicile. 



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16 ECCLESIASTICAL PERSONS 

sumption of a diocesan domicile. This is a recent no- 
tion, and it is not true to say that " many canonists/ 7 w 
even after the " Ne temere," adopted it. Cardinal Gen- 
nari promoted the theory which has now prevailed. 
" The canon law," says Boudinhon w truly, u has never 
recognized as domicile an unstable residence in different 
parts of a diocese, without intent to establish oneself in 
some particular parish." Now a Catholic of, e. g., the 
diocese of Cheyenne, with its more than 100,000 square 
miles, has a pretty wide range for his domicile. Let it be 
confessed, however, that the " Ne temere" has turned 
the tide in favor of a diocesan domicile ; for since the Or- 
dinary is looked upon as equal to the parochus proprius, 
it is logical to regard the whole diocese as a domicile. 

Paragraph 3 tells us that the parochial is not to be 
identified with the diocesan domicile, and consequently 
they may be two distinct juridical concepts. The ques- 
tion is therefore not quite useless : May one have a 
parochial and a diocesan domicile at one and the same 
time? The answer is rather difficult. One may move 
about the diocese from parish to parish for the time 
necessary to establish either a domicile or quasi-domicile, 
and, being tired of that nomadic life, settle permanently 
in one particular parish. As said above, from the first 
day of his intention to make his permanent abode in one 
parish a man acquires a domicile in that parish. But in 
that case it is clear that he intentionally gives up his 
domicile in another parish, because one intention excludes 
the other.* However, it is not impossible to contract 
two quasi-dom idles, one diocesan and the other parochial. 
For by staying a little over six months in one parish, a 



SA Cath. Euey., L c, p. 105. *0 Cfr. I. 19. Dig., 1, 5; I. 27, | J, 

19 Am, Eccl. Rtvuw, ibid.; Catk. Dig., 50, 1; c. 4, C, 34, q. I, z. 
Encyc, /. c„ p. 105. 



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CANON 93 X7 

man contracts a quasi-domicile, and since the intention 
is supplied by this six months* stay, he is not compelled 
to change his intention. 

Can. 93 



§ i. Uxor, a viro legitime non separata, necessario 
rennet domicilium viri sui; aniens, domiciliurn cura- 
tor is; minor, domicilium illius cuius potestati sub- 
iicitur. 

§ a. Minor infantia egressus potest quasi-domicilium 
proprium obtinere ; item uxor a viro legitime non se- 
parata, legitime autem separata etiam domicilium. 

The juridical status of wives and minors under the new 
Code is the same as under the Roman law. 41 But there 
is a difference concerning quasi-domicile, the Church law 
granting to wives, though not legally separated, the right 
to establish a quasi-domicile. This may be necessary 
in case of desertion, or of lawfully protracted absence 
from the husband; e. g. t if he be called to military serv- 
ice. Concerning minors, the Roman law too acknowl- 
edged the possibility of their acquiring a domicile/ 



« 



Can. 94 

§ x. Sive per domicilium sive per quasi-domicilium 
suum quisque parochum et Ordinarium sortitur. 

§ a. Proprius vagi parochus vel Ordinarius est paro- 
chus vel Ordinarius loci in quo vagus actu commoratur. 

§ 3. Tilorum quoque qui non habent nisi dioecesanum 
domicilium vel quasi-domicilium parochus proprius est 
parochus loci in quo actu commorantur. 



«Cfr. I. 17, I 11, Dig., 50. 1, *d «8Cfr. Can. 1097. 



municipalcm; Engcl, II, a, a. 12. 



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18 ECCLESIASTICAL PERSONS 

Can. o5 

Domicilium et quasi-domicilium amittitur disces- 
sione a loco cum animo non revertendi, salvo prae- 
scripto can. 93. 



These two canons complete the subject of domicile or 
quasi-domicile, without mentioning the commoratio men- 
silis which the " Ate temere " decree had introduced, and 
which is adopted in the Code with regard to matri- 
mony. 43 But this is the only case in which a monthly 
stay suffices for performing a legal act; in all other ju- 
diciary matters the domicile or quasi-domicile decides 
the forum competens with all its consequences, concern- 
ing which the fourth book is to be consulted. Here we 
will only mention the fact that the law makes no distinc- 
tion between domicile and quasi-domicile so far as pastor 
and Ordinary are concerned Hence the pastor of one's 
domicile has no preponderance over the pastor of one's 
quasi-domicile in the administration of the sacraments. 
In case, therefore, one has both a domicile and a quasi- 
domicile, it is he, not the pastor, who may decide from 
whom he wishes to receive the sacraments. 

Concerning vagi, the new Code embodies the juridical 
norm of the Council of Trent,** which is practically fol- 
lowed also by our civil law. As if to prove that dio- 
cesan domicile is a vague notion, the Code compares those 
who have only a diocesan domicile to vagi; their pastor 
is the one in whose parish they happen to live at the 
moment. This is import in regard to marriages, but in- 
vestigation must be made as to their free status. 

Why can. 95 exempts wives, minors, and the insane 

a 

48 Cfr. Can. 1097. 44 Cfr. Cone. Trid., Seas. 24, c 

7. tie rcf. mat. 



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CANON 96 19 

from losing their domicile is evident from the juridical 
assumption that they have no domicile of their own 
choice, 

It is not so easy to see why a wife lawfully separated 
from her husband (by ecclesiastical and civil court) and 
who can have a domicile of her own, can not lose it 
by departing from it with the intention not to return. 



■ 



BLOOD RELATIONSHIP AND AFFINITY 

If a common dwelling place, e. g., a municipality or 
city, is determined chiefly by origin and domicile, and 
hence may be called a civic or ecclesiastical relation, there 
is a still nearer connection possible, viz., by blood and af- 
fection. Hence the Code now proceeds to the determina- 
tion of those relationships, — consanguinity and affinity. 

o 
■ 

Can. 96 

. 

§ I. Consanguinitas computatur per lineas et gradus. 

§ 2. In linea recta, tot sunt gradus quot generationes, 
seu quot personae, stipite dempto. 

§ 3. In linea obliqua, si tractus uterque sit aequalis, 
tot sunt gradus quot generationes in uno tractu lineae: 
si duo tractus sint inaequales, tot gradus quot ge- 
nerationes in tractu longiore. 



p 



- 



Can. 97 

§ 1. Affinitas oritur ex matrimonio valido sive rato 
tantum sive rato et consummate 

§ 2. Viget inter virum dumtaxat et consanguineos 
mulieris, itemque mulierem inter et viri consanguineos. 

§3. Ita computatur ut qui sunt consanguinei viri, 
iidem in eadem linea et gradu sint affines mulieris, et 
vice versa. 



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20 ECCLESIASTICAL PERSONS 

Little practical value would ensue here from a further 
explanation, which must be deferred to the canons on 
marriage. Note that affinity has shared the fate of 
public honesty, in as far as also from a non-consum- 
mated marriage relationship results, which formerly was 
limited to matrimonium consummatum, or rather to car- 
nal intercourse, licit or illicit 

various rites 
Can. 98 



§ 1. Inter varios catholicos ritus ad ilium quis perti- 
net, cuius caeremoniis baptizatus fuit, nisi forte bap- 
tismus a ritus alieni ministro vel fraude collatus fuit, 
vel ob gravem necessitatem, cum sacerdos proprii ritus 
praesto esse non potuit, vel ex dispensatione apostolica, 
cum facultas data fuit ut quis certo quodam ritu bap- 
tizaretur, quin tamen eidem adscriptus maneret 

§ 2. Clerici nullo modo inducere praesurnant sive 
latinos ad orientalem, sive orientales ad latinum ritum 
assumendum. 

§ 3. Nemini licet sine venia Apostolicae Sedis ad 
alium ritum transire, aut, post legitimum transitum, 
ad pristinum reverti. 

§ 4. Integrum est mulieri diversi ritus ad ritum viri, 
in matrimonio ineundo vel eo durante, transire ; matri- 
monio autem soluto, resumendi proprii ritus libera est 
potestas, nisi iure particulari aliud cautum sit. 

§ 5. Mos, quamvis diuturnus, sacrae Synaxis ritu 
alieno suscipiendae non secumfert ritus mutationem. 

a 
c 
o 

What this canon says concerning the different rites, 
of which mention was made in the first book (can. i), 



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CANON 98 21 

was determined in the Constitutions of Benedict XIV, 4B 
Pius IX," and Leo XIII, especially in the latter's 
Apostolic Letter " De discipline Oricntalimn conservanda 
et tuenda." 4I The solicitude of the Apostolic See for the 
reunion of the Oriental dissidents and, at the same time, 
for the preservation of their peculiar rites, has been amply 
illustrated by Benedict XIV in his " Allatac." 

The reason why baptism is the characteristic mark of 
distinction between the different rites, must be sought 
in the ceremonies employed by the Orientals in con- 
ferring this sacrament," which is the gate to the Church. 
The Oriental formula, though deprecatory rather than in- 
dicative, is equivalent to the Latin: "Ego te baptizo." 
The attending ceremonies, however, especially the con- 
firmation connected with baptism, differ greatly. Hence 
it is proper that the difference of ceremony in conferring 
the sacrament of initiation should mark the distinction 
between the rites at large. 

If a Latin minister baptizes "by fraud," e. g., pre- 
tending to be an Oriental minister, the child nevertheless 
belongs to his father's rite, for the rite of the father 
determines that of the child. A case of necessity, when 
by reason of not having an Oriental minister a Latin 

_ 

priest should have to baptize the child of an Oriental, is 
mentioned by Benedict XIV." The last clause of para- 
graph 1 of our canon is an amplification of the case cited 
in Leo's " Orientolium," where mention 60 is made of one 



«"£&! pastoratti," May 26, 47" Oriintalium," Nov. 30, 1894 

1743; " D una tidal am," Dec 24, (Leonis XIII AUocutionex. £/>«- 

'743! " Alto a*," Feb. ao, 1755 tola*, Constitution**; ed. Dewrlee, 

{Bull. Btntd., ed. Pitt, 1845. I, "898, v, 303 ff.). 

19; ff; 328 ff; 349 ff. 48 Cf. Benedict XIV, " Elsi fas- 

*•" Im suf-rema." Juk. 6, 1848; toratU," | II (i. C„ p. 199). 

" Romani Pontificts," Jan. 6, 1862; 40 " Dtmondatam," | 18 (/. c, p. 

" Anuntusimus," Apr. 8, 1863 {Coll. jm). 

Lac, II, 484 ff.). 00 No. XI (/. c, p. 308). 



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ECCLESIASTICAL PERSONS 

converted to the unity of faith under the condition of 
embracing the Latin rite. Such a one is not bound to 
remain a Latin forever, but may return to his native (of 
course Catholic) Oriental rite. 81 

in 

Paragraph 2 prohibits proselytizing, without, how- 
ever, mentioning the penalty of suspension inflicted in 
" Oricntalium " M and " Demandatam." Paragraph 3 is 
a modification of Leo's Constitution which permitted a 
return to the former rite if the Apostolic See had been 
asked — Apostolica Sede exorata. 

Paragraph 4 is taken almost verbally from Leo's Con- 
stitution, with the exception of the clause, lt unless other- 
wise provided by particular law." Under this clause a 
provincial council might issue regulations contrary to 
this canon. 

As to the last paragraph, the respective passage in 
" Orientalium" is somewhat wider: "The faithful are 
at liberty to communicate in either rite, not only in places 
where there are no churches or priests of their own rite, 
but also where their places of worship are too distant 
to be conveniently frequented. But they must not on 
that account be supposed to have changed their rite, but 
remain in all other offices subject to their own pastor." M 
Since this canon offers us an opportunity which, as 
far as we are aware, does not recur in the whole Code, 
it may not be amiss to complete the subject from the 
Constitution of Leo XIII. Religious who conduct schools 
frequented by members of the Oriental rite, should em- 
ploy a priest of that rite for the respective functions. 
Every Oriental who lives outside the territory of his 
Patriarch is under the care of the Latin priest, but re- 
st lb., n. I (p. 306 ff.). Neither 62 L. c, n. II (p. 307). 
could wc discover thia penalty in 63 lb., n. Ill, IV, IX, XII, ('. c, 
the penal code. p. 307 if- J. 



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CANON 99 23 

mains subject to his own rite, so that nothing is changed 
in his relation to the Oriental rite. Matrimonial and 
other ecclesiastical causes appealed to the Apostolic Dele- 
gate must be submitted to the S. C. pro Ecclesia Orien- 
tals These general rules also hold good for the Orien- 
tals in this country. 



MORAL OR JURIDICAL PERSONS 
s 

Can. 99 

In Ecclesia, praeter personas physicas, sunt etiam 
personae morales, publica auctoritate constitutae, quae 
distinguuntur in personas morales collegiales et non 
collegiales, ut ecclesiae, Seminaria, beneficia, etc. 

(For can. 100, see p. 3, supra.) 

Can. ioi 

§ 1. Circa actus personarum moralium collegialium : 

i.° Nisi aliud expresse iure communi aut particulari 
statutum fuerit, id vim iuris habet, quod, demptis suf- 
fragiis nullis, placuerit parti absolute maiori eorum qui 
suffragium ferunt, aut, post duo inefncacia scrutinia, 
parti relative maiori in tertio scrutinio ; quod si suff ra- 
gia aequalia fuerinr, post tertium scrutinium praeses 
suo voto paritatem dirimat aut, si agatur de electioni- 
bus et praeses suo voto paritatem dirimere nolit, elec- 
tus habeatur senior ordine vel prima professione vel 
aetate; 

a.° Quod autem omnes, uti singulos, tangit, ab omni- 
bus probari debet. 

§ a. Si de actibus personarum moralium non colle- 
gialium agatur, serventur particularia statuta ac 
normac iuris communis, quae easdem personas respi- 
ciunt. 



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Can. 102 

§ 1. Persona moralis, natura sua, perpetua est; ex- 
stinguitur tamen si a legitima auctoritate supprimatur, 
vel si per centum annorum spatium esse desierit. 

§ 2. Si vel unum ex personae moralis collegialis 
membris supersit, ius omnium in illud recidit. 

What has been said, supra, pp. 1 sqq., about moral 
persons may now be detailed. Canon 99 draws a dis- 
tinction between corporate and non-corporate bodies. 
What is required for the former has been stated above. 
Properly speaking, non-corporate bodies cannot be called 
juridical persons at all. For such the term "moral en- 
tities" (the Italians style all corporations " enti morali") 
would be more suitable. But it was precisely the Italian 
government, or rather some extremely radical jurists, 
who, in order more readily to suppress ecclesiastical cor- 
porations, denied the existence of such moral entities. 5 * 
On the other hand, civil governments, especially in Eu- 
rope, have acknowledged the legal title of corporations 
even to parishes. 65 Here a parish is not considered a cor- 
poration, because it lacks an end sufficiently distinct from 
others, — all parishes having one and the same end, the 
care of souls, — and because of the want of a subject 
proper as bearer of corporate rights. The parish as 
such is not the bearer of distinctly ecclesiastical rights, 
as it is composed of lay people who enjoy rights only as 
far as they are members of the Church, Hence the cor- 



5* Thus Scaduto and Gionri. L* 55 Cf. Lampert. Die reckte Stel- 

Dottrina delle Person* Gittridicht, lung der Landeskirchen in den 

Firenxe 1897. But what about Schwtiser. Kantontn, 1908; Id., 

Italia Unita? Is it no ente or Doc. Stifvngen, 101s; Schul-System, 

corpo morale/ p. 25a. 



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CANON 102 25 

porate rights would be vested in the pastor, who, how- 
ever, cannot form a corporation, since to constitute a 
corporation requires at least three physioal members. 
English law perceived the difficulty and assumed, very 
logically, a corporation sole. Our States, after some 
changes and development, assume either a corporation 
aggregate, or the trustee corporation, or the modern form 
of the corporation sole. 66 

As stated under can. 100, § 3, such corporations have 
an end subordinate to that of the universal Church, and 
depend for their legal existence on the supreme author- 
ity, and hence share the lot of minors placed under 
guardians. It follows that their corporate acts are sub- 
ject to common law and to those particular laws which 
conform to the former, or if they do not conform, are at 
least approved of by higher authority. For just as the 
State requires conformity to its own common laws when 
approving a corporation, so also the Church approves 
only such corporations as correspond with her general 
end and are conducive thereunto. Hence can. 101 es- 
tablishes some general rules to be observed at meetings 
held to decide a matter proposed to the vote of the mem- 
bers of a corporate body. Under i°, the law speaks 
only of such acts as are voted on by the members present 
("qui suffragium ferunt"). Now it is generally pre- 
sumed that two-thirds of the members present form a 
quorum capable of making a decision. 07 Therefore the 
general law considers the absent members as not claim- 
ing their right of voting, and as having no right to remon- 
strate against a resolution adopted by the majority. We 
say, the common law treats absent members thus. If the 
particular statutes of the corporation contain a contrary 

B« Cfr. ZcIImann, /. c, p. 63. ST Boubt, Dt Copitulu, p. 18 1. 



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26 ECCLESIASTICAL PERSONS 

• 

clause, vis., that the votes must be counted according to 
the total number of members, either present or absent, 
this statute must be followed. If no such statute exists, 
votes of the members present only are counted. 

Number 2 provides that the invalid votes (detnptis suf- 
fragiis nullis) must be subtracted from the sum-total of 
the voters present. 

A suffrage is null and void, according to the Code, 58 
if extorted, or not given secretly, — if secrecy be required 
by the particular statutes, in matters not touching election, 
— or if given conditionally. Such votes, therefore, must 
be thrown out. 

An absolute majority is one vote more than half of 
those given; for instance, if there are thirteen who cast 
a vote for or against selling a certain property, and seven 
are for, while six are against selling, the resolution 
carries in favor of selling. A relative majority can take 
place only when more than two resolutions or more than 
two candidates are at issue. Thus, in the case just men- 
tioned, there may be question not only of selling or not 
selling, but also of renting or borrowing money. If four 
of twelve members present would vote for selling, and 
three against, and five for taking up money, the last vote 
would carry, but only in the third scrutiny, not in the 
first and second, because for these two an absolute ma- 
jority is required, and hence seven votes out of twelve 
would have to be cast for taking up money if it should 
carry in the first or second ballot. 08 

The last means of deciding an even vote is the presi- 
dent or presiding officer, who may give his vote in 

08 Can. i6g. These rules affect 184. This rule was formerly re- 

Ihe moral and juridical liberty of jected by weighty canoeists; but it 

the voters. la very reasonable in that it prevents 

oa Cfr. Bouix, Dt CapitulU, p. waste of time. 



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CANON 102 27 

favor of either side. But there may be cases, especially 
in elections, when the president does not wish to cast the 
deciding vote. If two or three candidates come out 
with an even number of votes in three scrutinies, and the 
presiding officer refuses to decide in favor of any one, 
how is the election to be settled ? First the rank and sen- 

- 

iority of sacred orders must be considered, and therefore 
a priest must be preferred to a deacon, and a deacon to 
a subdeacon (minor orders are not taken into considera- 
tion). If in a religious community two priests are 
elected who were ordained on the same day, the date of 
their simple profession decides the preference, and if by 
a fanciful hypothesis both should have been ordained and 
made their profession on the same day, 85 the priority of 
age must decide who is elected; because then the rule 
would hold : " Prior in tempore, potior in iure" as will 
be seen under the canon governing precedence. 

No. 2 of § 1 (canon 101) apparently sets up a contra- 
dictory rule by ordaining that " what touches all, as indi- 
viduals, must be approved by all," in accordance with the 
regula juris 29 in 6° : ™ Quod omnes tangit, debet ab 
omnibus approbari/' n But our text by way of explana- 
tion adds : * ut singulos" These two words clear up the 
apparent contradiction. For in every corporation there 
are rights which touch the corporation as such (e. g., cor- 
poration property) and rights which are intrinsically in- 
herent in each member as such. Concerning the latter 
class the law requires that the approval of all must be 
given, if rights are to be given up, or changed, or retained. 
An example of the former would be, according to our 



flo Reg. S. Betted., c. 58; cfr. 1. acrvitut. pracd. rust; RcifFcnituel, 
S, Cod. Just., v, 59 de auctoritate t. ult, Reg. 29. 
praeitanda; !. 11 Dig. 8, 3, Dc *i Reiffenstuel, Con. in Reg. 

Iwris, 39, si. 7 :T. 



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38 ECCLESIASTICAL PERSONS 

opinion, a change of statutes, of the latter, a change of 
election and compromise.* 2 

As to paragraph 2, nothing need be added except that 
the acts mentioned therein are not properly speaking cor- 
porative acts or enactments, but mere rules set forth by 
proper authority. 

That a moral person is perpetual, as can. 102 states, fol- 
lows from the nature of its organization and end, which 
is enduring. That the legitimate authority which has 
sanctioned its existence, can also dissolve a corporation, 
needs no proof. 

§ 2 enacts that corporate rights devolve on the surviv- 
ing member. This follows from the generally accepted 
rule : " Collegium remanet in uno" Although at least 
three persons are required for constituting a corporation, 
yet by way of devolution the corporate rights would, 
in case of death or defection of all but one member, 
devolve on that member, who would become the bearer 
of all those rights, though he could not exercise all of 
them, for instance, he could not elect himself. 6 * 

ETHICAL QUALITIES OF LEGAL ACTS (VIS, METUS, 

ERROR) 

If we speak here of moral qualities, we do not mean 
to deny the juridical character inherent in these qualities. 
It is evident that violence, fear, and error, of which the 
two following canons treat, affect chiefly the intrinsic 
or ethical side of corporate acts, and only indirectly their 
juridical nature. This is quite obvious, for it is impos- 
sible to sever morality from right or law. 

02 Cfr. Bouix, / v Capitutu, p. Cfr. can. i6j (on election) ; can. 
184, p. 601; Aichncr, I. c, | 82, 1. 172 (on compromise). 

08 Cfr. Buuut (as under note 62). 



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Can. 103 

§ x. Actus, quos persona sive physica sive moralis 
ponit ex vi extrinseca, cui resist! non possit, pro in- 
f ectis habentur. 

§ 2. Actus positi ex metu gravi et iniuste incusso vel 
ex dolo, valent, nisi aliud iure caveatur ; sed possunt ad 
norm am can. 1684-1689 per iudicis sententiam rescindi, 
sive ad petitionem partis laesae sive ex officio. 

Can. 104 

Error actum irritum reddit, si versetur circa id quod 
constituit substantiam actus vel recidat in conditionem 
sine qua non; secus actus valet, nisi aliud iure cavea- 
tur ; sed in contractions error locum dare potest actioni 
rescissoriae ad normam iuris. 

These are general norms, universally accepted by can- 
onists, except the second paragraph of Can. 103 in its 
broad sense. Civil law is more lenient with regard to 
accidental errors. 

Violence, or physical force, whether justly or unjustly 
exercised, if irresistible, of necessity excludes free con- 
sent of the will. Wherefore an act posited — we cannot 
well say performed — under such influence, can neither 
be imputed nor does it entail a moral or juridical obliga- 
tion. Note, however, the clause, " which cannot be re- 
sisted." For if the assailant can be resisted, at least by 
using equal violence, he should be resisted ; violence must 
be warded off by violence, unless perhaps reverence or 
respect would dictate otherwise. Thus a child may not 
use violence against his parents, even though they should 
physically try to force him into a state of life distaste- 
ful to him. Violence is less practicable in case of a cor- 



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3 o ECCLESIASTICAL PERSONS 

poration, because a crowd is less liable to be attacked. 
Yet even a body of men, for instance, electors, may be 
subjected to violence. The people of Viterbo gave actual 
proof of this. 8 * 

Physical violence, thus brought to bear on the mind 
in order to force a man to do something against his will 
creates no voluntarium, and therefore produces no hu- 
man act. 05 Notice, however, that this violence must affect 
the person himself; violence done to parents, near rela- 
tives, or friends, is not the violence of which § I of our 
canon speaks, but is rather fear or alarm, which the Code 
considers next. 

Fear is an emotion excited by threatening evil or im- 
pending pain, accompanied by a desire to escape or avoid 
it All violence, as the Pandects say, 00 is fear or causes 
fear; but metus does not always include physical force. 
The Jaw then goes on to determine the nature of fear. 
Fear, to render an act involuntary, must be grievous, 
vehement, and at the same time unjustly threatened. 
Concerning the first condition authors generally describe 
fear as grievous when it is such as may befall a man of 
robust body and mind, not a nervous or weak-minded 
person. Wherefore, they add, two things are required to 
constitute grievous or vehement fear, vis., that the threat- 
ened evil exists objectively, not merely in the imagination, 
and that the evil threatened be important and weighty, 
e. g„ death, mutilation, imprisonment, loss or confiscation 
of property, defloration, 07 and, we might add, the loss of 



o* The incident of Viterbo, 1370- causa fiunt; Dig. 4, 2; Cod. Just., 
71. was instrumental in framing 2, 19. 

the decretal of Gregory X on papal oa L. 1, Dig. 4, 2: " Metvs in- 

elections, c 3, 6", 1, 6. stent-,: vet futuri ptriculi causo mtn- 

•5 S". Tk. MI. q. 6, o. 5; cfr. c. 4. *« Iripidatio." 
X, I, 40 de his quae vi mtlusvt fl ? Keiffenstuel, I, 40, n. 28. 



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CANON 104 31 

reputation for a person in good standing, or of social po- 
sition and remunerative occupation. 

The other condition is that fear be unjustly threatened 
or inflicted. Unjust would be a fear excited by private 
authority, or by one not entitled to threaten an evil in 
order to obtain consent. We should likewise consider a 
fear unjustly threatened if there were no proportion be- 
tween the greatness of the evil threatened and the reason 
for which it is threatened. Thus a judge might un- 
justly threaten one to force him to marry a certain person 
for futile reasons, or threaten one so that he would give 
up a position because of political disagreement. 

This remark leads to another observation made by can- 
onists. The connection between the evil threatened and 
the special act which is to be extorted by the threat, is 
expressed by the disjunctive formula: either — or; either 
death or marriage ; — in other words, the evil must be 
threatened ad hoc, for that very purpose, and no other." 
Lastly, as the term "incussus" seems to imply, the fear 
must come from outside, ab extrinseco, or, as it is also 
termed, from a causa libera, i. e., an agency existing 
outside the one who suffers fear, and not from a natural 
phenomenon such as lightning or shipwreck. 

Now an act performed under the influence of fear, thus 
described, or inspired by fear, is not necessarily invalid, 
because it may still be truly voluntary, though, under a 
certain aspect (secundum quid), it is involuntary. For 
there is in the intellect the knowledge of an end, and that 
end is wished for, along with what is chosen as a neces- 
sary means to it. In this respect, such actions are, in 
themselves, truly and properly called voluntary. On the 

other hand, these same acts are performed against the in- 

- 
< 

«8 Ci. S. Tk, I-II, q. 5, a. 6; Hill, Ethics, 8 ed., pp. 51 ff. 



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clination of the will and with reluctance; and although the 
person cannot say, " I will not," yet he could truly say, 
" I would I could not." Hence, actions performed under 
the influence of fear are in a certain respect involuntary fl * 
and, according to our Code, give the victim the right to 
have the act rescinded. However, on account of possible 
hallucinations, and for the sake of the public welfare, a 
legal procedure must be followed. The first step will be 
to gather proofs in the form of affidavits; the next, to 
secure a lawyer, unless the person is able to act as his 
own lawyer. Then the judge of the defendant, or in 
other words, the competent judge 70 — actor sequitur fo- 
rum rei — must be sought 

A judge may of his own accord proceed against one 
who has threatened another unjustly, for such conduct 
is detrimental to the public welfare. As soon as the 
judge is morally convinced that evil has been unjustly 
threatened, he may cite the injured party, even though 
the latter would wish to escape a trial. It is left to the 
prudent and conscientious judgment of the judge to pro- 
ceed further, unless the validity of a marriage is at stake. 

The same legal benefit is granted to one who suffers 
from another's deceit (dolus), which is called a conniv- 
ance to cheat or deceive another, who thereby suffers 
injury. This occurs especially in matters of contract, 
wherein the law takes it for granted that every transac- 
tion is fair and honest. 71 Whether deceit is committed 
by hiding the truth (calliditas) or telling a lie (fallacia), 
or by some machination employing both words and deeds, 
is immaterial. But it is important to ascertain whether 



flo This will be farther explained Ti Blackstonc-Cooley, I. c, III, 

in Book IV; cfr. cc. 1684-1680. 164. 

TOCfr. X, II, 14 dt dolo; Dig. T2 Rciffenstud, II, 14. n- 
IV, 3 <*# Mo ™*'o. 



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CANON 104 33 

the deceit practiced is the cause of one's acting in such 
a way; for if the dolus is only concomitant, and not the 
impulsive cause of the act, the benefit of law (writ of 
deceit) cannot be invoked. 

Deceit generally causes error, and therefore the follow- 
ing canon speaks of error. Error is a state of mind in 
which one approves falsehood for truth. It differs from 
ignorance, which is a lack of due knowledge. The Code 
distinguishes between a mistake regarding the substance 
of a thing, and one which concerns a quality as a condition 
sine qua non, The former would be the case if one 
bought brass for gold, a pearl of glass for a jewel, or if 
he married Anna instead of Mary, whom he had intended 
to marry. 78 An essential or sine qua non condition (this 
clause evidently refers to matrimonial law), would be a 
quality inherent in a woman by which alone she is known 
to the wooer, and on account of which alone he wishes 
to marry her (for instance, she is the first-born daughter 
of his friend). Such an essential condition might also 
occur in buying a registered steer of a certain stock. 
Now if the would-be groom or the buyer is in error or 
deceived, no matter by whom, the marriage or purchase 
is void, because the essential consent is wanting by rea- 
son of a false object presented to which the intention was 
not directed. 

The circumstances which render an object less desira- 
ble may, however, be purely accidental, as when the per- 
son married is not as peaceful or as rich as pretended and 
believed before marriage. Such accidental errors do 
not render the act null and void, because consent, at least 
in persons acting reasonably, is not directed exclusively 
to such accidents. 



ts Tbii may occur in the case of twins or other persons resembling each 

other Tery cloiely. 



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34 ECCLESIASTICAL PERSONS 

But marriage is a peculiar affair, which shall be treated 
more fully in its proper place. The Code says that in 
matters of contract room is left for rescinding the act. 
Here especially enters the writ of deceit, which is granted 
also by the civil law. 

It is then in the power of the plaintiff to approach the 
judge either to obtain damages or to put in a claim for 
annullment of the act performed under deceit, and the 
judge will have to decide whether he is competent to give 
a verdict in the case. 7 ' That the procedure must be legal 
is required by the public welfare, which demands equity 
as well as order and justice. 



consent or advice to be asked by the superior 

Can. 105 

Cum ius statuit Superiorem ad agendum indigere 
consensu vel consilio aliquarum personarum: 

i.° Si consensus exigatur, Superior contra earundem 
votum invalide agit ; si consilium tantum, per verba, ex. 
gr.: do consilio consul to rum, vel audita Capitulo, 
parocho, etc., satis est ad valide agendum ut Superior 
il las personas audiat ; quamvis au tern nulla obligatione 
teneatur ad eorum votum, etsi concors, acccdcndi, 
multum tamen, si plures audiendae sint personae, con- 
cordibus earundem suffragiis deferat, nee ab eisdem, 
sine praevalenti ratione, suo iudicio aestimanda, disce- 
dat; 

2. Si requiratur consensus vel consilium non unius 
tantum vel alterius personae, sed plurium simul, eae 
personae legitime convocentur v salvo praescripto can. 
162, § 4, et mentem suam manifestent; Superior autem 
pro sua prudentia ac negotiorum gravitate potest eas 

T« Cfr. cc. 1679-1683, which correspond to the actio erroris. 



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St 

adigcrc ad iusiurandum dc sccrcto scrvando praestan- 
dura; 

3. Onirics dc consensu vel consilio rcquisiti debcnt 
ea qua par est reverentia, fide ac sinceritate sentcntiam 
suam aperire. 



The general rule, says Engel, 75 is that every important 
matter should be treated by the superior (prelate) either 
with the consent or with the advice of his chapter. 

Such advice, though it does not bind the superior, is 
not to be looked upon as superfluous. For by counsel, 
observes the same author, hasty and foolish acts are 
prevented, and several pairs of eyes see more than one. 
This rule, of course, applies especially to cathedral and 
religious chapters, where the bonum privatum must cede 
to the bonum commune. Which cases require consent 
or advice is stated in the law. We merely observe that, 
unless expressly provided in the Code, advice only, not 
consent must be asked. 70 

The next number treats of convocation required in case 
several persons must be asked at the same time. This 
is the case with our diocesan consultors, who, therefore, 
must be called together for a meeting whenever their con- 
sent or counsel is demanded by law. For though our con- 
sultors do not as yet, like the diocesan chapter, form an 
ecclesiastical corporation, they take the place of such in 
the government of the diocese, and. besides, constitute 
among themselves, 77 a " coetus," which is the meaning 
of " plures sintuIJ' 

Of course, if all the consultors should accidentally be 
present, for instance, at a diocesan meeting or clerical 

TB Cfr. ad X, III, t, 10, n. x, Se ■peaks only of advice, not consent. 

ku qua* fivnt a praetatis tint con- TO Cfr. Can. 427. 

mtu copltuli; Engel, III, 10, n. 1. T7 Cfr. Can. 162 | 4. 
Rwg. S. Dentil., which, however. 



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36 ECCLESIASTICAL PERSONS 

retreat or on some festive occasion, 78 the bishop may 
make use of that opportunity and consult them there and 
then, but not in the presence of others, t. e., not in such a 
way that others may hear the counsel and the consultors 
thereby perhaps be compromised or hindered in their 
free speech. 

Whether a matter is of sufficient importance to require 
secrecy, is left to the judgment of the superior. 

PRECEDENCE 

Precedence, first and above all, means priority in rank 
or dignity, and this, in turn, is chiefly, though not exclu- 
sively, based upon the authority or power one enjoys over 
another. Hence the relation between superior and in- 
ferior, between tnaioritas and obcdientia, as defined in 
the Decretals (I, 33). Similarly, our Code establishes 
jurisdiction as the primary rule of distinction. 71 * 

Can. 106 



Circa praecedentiam inter varias personas seu physi- 
cas seu morales, serventur normae quae sequuntur, 
sal vis normis specialibus quae suis in locis traduntur : 

i.° Qui alius personam gerit, ex eadem obtinet prae- 
cedentiam ; sed qui in Conciliis alliisque similibus con- 
ventibus procuratorio nomine intersunt, sedent post 
illos eiusdem gradus qui intersunt nomine proprio ; 

2. Cui est auctoritas in personas sive physicas sive 
morales, eidem ius est praecedentiae supra illas; 

3. Inter diversas personas ecclesiasticas quarum 
nulla habeat in alias auctoritatem : qui ad gradum po- 
tiorem pertinent, praecedunt eis qui sunt inferioris 



TB Cfr. Can. 162 I 4. K.-K., I, 431 f. 



to Cfr. c. 15, X, I, 33 [ t. Scbcrer, 



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gradus; inter eiusdem gradus personas sed non eius- 
dem ordinis, qui altiorem ordinem tenet, praecedit iis 
qui in inferiore sunt positi ; si denique ad eundem gra- 
dum pertineant eundemque ordinem habeant, praecedit 
qui prius est promo tus ad gradum; si eodem tempore 
promoti sint, senior ordinatione, nisi iunior ordinatus 
f uerit a Romano Pontifice ; et si eodem tempore ordi- 
nem receperint, senior aetate; 

4-° In praecedentia diversitas ritus non attenditur; 

5-° Inter varias personas morales eiusdem speciei et 
gradus, ilia praecedit quae est in pacifica quasi-posses- 
sione praecedentiae et, si de hoc non constet, quae prius 
in loco, ubi quaestio oritur, instituta est ; inter sodales 
vero alicuius collegii, tus praecedentiae determinetur 
ex propriis legitimis constitutionibus ; secus ex legit ima 
consuetud inc ; qua deficiente, ex praescripto iuris com- 
munis; 

6- Loci Ordinarii est in sua dioecesi statuere prae- 
cedentias inter suos subditos, ratione habita princi- 
pioriun iuris communis, legitimarum dioecesis consue- 
tudinum et munerum ipsis commissorum ; et omnes de 
praecedentia controversias, etiarn inter excmptos, qua- 
tenus ii collegialiter cum aliis procedant, componere in 
casibus urgentioribus, remota ornni appellations in 
suspensivo, sed sine praeiudicio iuris uniuscuiusque ; 

7. Circa personas quae ad Domurn pontificalem per- 
tinent, praecedentia moderanda est secundum pecu- 
liaria privilegia, regulas et traditiones eiusdem ponti- 
ficiae Domus. 



This question of precedence may come up at a future 
council just as it did at the Vatican Council, 80 where prece- 

80 Cf. Granderath-Kirch. Gtxch. da Vatik. Komils, 1903. I, p. 391 ff. 



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dence was established as follows: (i) Cardinals accord- 
ing to their titles, episcopal, presbyterial, diaconal; (2) 
Patriarchs; (3) Primates, but only by a special grant of 
the Pope; (4) Archbishops according to the time of 
their promotion; (5) Bishops in the same way; (6) 
Superiors general of religious orders with solemn vows." 
Procurators were excluded from both a consultative and 
a decisive vote, just as they are now under the new 
Code. 82 To plenary councils no procurators are admit- 
ted, except coadjutors or auxiliary bishops," who, there- 
fore, will have to take their seats after the ordinaries 
who are personally present. Since the general rule is 
that precedence must be determined according to the rank 
of the person represented, an apostolic legate precedes 
all others, provided he be a cardinal. 

This is the principle of distinction regarding rank 
or precedence. However, it may happen that many are 
present of equal authority, wherefore, to avoid unpleas- 
ant contention, the following rules are to be enforced : 

It may happen, not only in conciliar meetings, but also 
on any festal occasion, that this " crux magistrorum cere- 
moniarum" (the question of precedence) may arise. 
Our canon furnishes the solution. We will add only a 
few remarks. Cardinals always have precedence over all 
other dignitaries except an apostolic legate. They rank 
according as they are Cardinal bishops, priests, or dea- 
cons, and are followed by the Patriarchs, the residential 
archbishops and bishops, 84 titular archbishops and titular 
bishops, who have no "authority," properly speaking. 

si Concerning the Council of diocesan bishop precedes even arch- 

Trcnt, to which procurator* of the bishops — with the exception of his 

German bishops were admitted, ib. Metropolitan — and all other bish- 

p. 108 ff.;CoKc*/ium Trid., 1901, I, ops. Can. 347. 

*o'» 349, 368 etc.; can. 224, | a. 84 This rule was observed at the 

*3 Cfr. can. j8j. Vatican Council; GranderMh-Kirch, 

•• But in his own territory the I. c, I, p. 39a. 



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CANON 106 39 

Among those of equal rank, e. g., bishops, the one who 
has been promoted earlier to the episcopal rank precedes 
the one whose promotion occurred later. Notice the 
term promotion, for it means the publication of the bish- 
op's name in Consistory, not the date of his election or 
consecration." 

The next step in deciding the question of precedence 
between two prelates of equal rank, order, and promo- 
tion, is to ascertain the date of their ordination. Now 
ordination, according to our Code, 88 includes the con- 
ferring of the tonsure, wherefore the date of clerical 
initiation decides seniority. One case, however, is ex- 
cepted, vis., if one is ordained by the Roman Pontiff. 87 
But the term " Roman Pontiff" is here to be interpreted 
strictly, wherefore ordination by the Cardinal Vicar of 
Rome or another Cardinal does not involve that privilege. 
A special delegation, however, given by the Pope to or- 
dain a cleric in his name would have the same effect as 
ordination performed by the Pontiff himself. 88 Finally 
the last hypothesis is clear enough, vis., if two were equal 
in rank, order, promotion, time of ordination, then the 
natural age would have to decide. 

Hence Latin and Oriental bishops or priests are equal, 
ceteris paribus. 

The rule of precedence among religious is settled in the 
section on religious, can. 491, but since this bone of con- 
tention has always troubled the house of God, as we 
know from innumerable decisions of the S. C. EE. et 
RR., several pontifical Constitutions M have been issued 



•8 Can. 350. 88 Pius V, " Divin*," Aug. 17, 

•flCan. 950; cfr. c ia, X, I, 11 1567; Greg. XIII, " Expoidt," July 

de temp, ord.; Bened. XIV, "In as, 1583. Cfr. the Glou ad c x, 

postretno," Oct. 20, 1756 {Bull., 6\ III, 13; c. m. 6", r, 6; Santi- 

Prati, t. Ill, 388 ff.). Leitner, /. c, I, 33, n. a (vol. I, p. 

•* ,f In portremo," f 19 <p. 398). 380). 



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40 ECCLESIASTICAL PERSONS 

St 

on this matter, which we shall quote in their proper place. 

The first clause of n. 5 is taken from " Exposcit" 
of Gregory XIII, July 25, 1583. There the question was 
settled concerning the Mendicant Orders in the way now 
prescribed for all. If a Mendicant Order could prove 
its quasi-possession, 88 that is, undisturbed and uncon- 
tested precedence for a time at least sufficient for pre- 
scription, it was supposed to have a just title thereto. 
If no such proof could be furnished, the historical fact 
of being founded in a place earlier than a competitor was 
to settle the question. This is still the rule concerning 
corporations of the same kind. It also applies to cor- 
porations of the same rank. A cathedral is of higher 
rank than a collegiate chapter, a distinguished chapter 
higher than a non-distinguished. M A clerical order en- 
joys precedence over a non-clerical one, etc.* 1 Corpora- 
tions which have their own constitutions must consult 
these, or else custom and the common law, especially the 
present paragraph, and others treating the question of 
precedence. 

This latter ruling is very wise because apt to maintain 
order and decorum on solemn occasions, without preju- 
dice to the rights of religious. 

During procession, the decision of the Ordinary must 
be obeyed, and only after the function is over, have those 
who think they are wronged a right to defend their 
claim, first before the bishop, and then before the S. C. 
Relig. 
» The rules under § 7, concerning the Papal Household 



si It ii called quasi-possession 01 If men strike each other with 

because of the nature of right, the staffs of their banners and 

which fs not corporeal ; vidt Reif* crosses — and we read ot such in- 

fanstud. II. la, n. U3 ff. stances in genuine records — the 

vo Cfr. can. 391, | 2; can. 408; decorum is gone. 
can. 491. 

c 
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CANON 107 41 

at 

or Famiglia Pontificia are contained in the Caeremoniale 
of the papal palace and do not enter into our present pur- 
pose. Precedence, like etiquette, belongs to every well 
regulated government, and not even a thorough-going 
democrat has a right to ridicule it, for it is based on 
human nature and the dictates of right reason. 



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Can. 107 

Ex divina institutione sunt in Ecclesia clerici a J aids 
distincti, licet non omnes clerici sint divinae institu- 

tionis ; utriquc autem possunt esse religiosL 



After treating generally of the members of the Church 
who are such by baptism, and of the different physical 
and moral persons who may exist within the Church, 
the Code draws the line of demarcation between clergy 
and laity. This distinction, as pointed out above, is 
based upon the nature of the Church, which, because of 
its divine and therefore legal and necessary existence, 
has a constitution of its own, neither made nor to be 
changed by men, at least in its essential features. One 
essential feature of this constitution is the hierarchy in 
the broad sense, involving a distinction between clergy 
and laity. 

The term clergy is derived from the Greek i&jjpov, 
(Latin sors) t a lot." According to St. Jerome, clerics 
are so called because they are called into the lot of the 
Lord, or because the Lord is their portion, or because they 
are chosen by lot. Therefore every clergyman may in a 
particular sense be called a servant of God. That the 
e'ergy, distinguished into its hierarchic orders, has grad- 
ually grown into a minutely arranged system, is owing to 

>■: Or. c, 5, C. is, q, 1 : -. -, ib. {inctrli tuctorit, sate. XI). 



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4^ ECCLESIASTICAL PERSONS 

circumstances of necessity and natural development, ex- 
cepting, of course, the divinely ordained distinction be- 
tween bishops, priests, and deacons. 

The word laity is derived from Xaot (plcbs), people, 
in which sense it occurs in the epistle of St Clement to 
the Corinthians. 98 Hence this organisation or distinction 
can claim divine institution. 

u C. 40; cf. Bruders- Villa, La Kirch* in Ehrhard'i Kirch. For- 
Costitusione delta Chiesa, 1906; schungen, 1904, XV. 
German: Di* Vtrfassung drr 



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PART I 
THE CLERGY 

SECTION I 
THE CLERGY IN GENERAL l 

Can. 108 

§ i. Qui divinis ministeriis per primam saltern ton- 
surarn mancipati sunt, clerici dicuntur. 

§ 2. Non sunt omnes in eodem gradu, sed inter eos 
sacra hierarchia est in qua alii aliis subordinantur. 

§ 3. Ex divina institutione sacra hierarchia ratione 
ordinis constat Episcopis, presbyteris et ministris ; ra- 
tione iurisdictionis, pontificatu supremo et episcopatu 
subordinato; ex Ecclesiae autem institutione alii quo- 
quc gradus accessere. 



In connection with the custom of cutting the hair of 
those who were to be servants (mancipati, serfs, slaves) 
of the Church, tonsure occurs as early as the fifth cen- 
tury. 1 It may be defined as a rite whereby a Christian 
(Catholic) is constituted in the clerical state and made 
fit to receive minor orders. 2 Hence tonsure 8 can be con- 



l Cf. Constant, /. c. t p. 73; Mar- Cod. Just., XI, 63. 

tine, Dg Antiquis Eecl. Ritibus, a Cfr. Ponl. Rom., De Clerico 

I. i, c 8, art. 7 (ed. Antwerp, 1736, Facundo; Lammer, K.-R., p. 81. 

t. II, 40 ff.); Cone. Agath., an. a Cfr. Cone. Trid., Sew. aj, c. 4, 

506, c 19. Mancipio were acrfa V* Ref. — The difference between 

or a higher grade of slaves; cfr. the Scottish and Roman toniure 

43 



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44 ECCLESIASTICAL PERSONS 

ferred only on such as are validly baptized and confirmed 
and ask for it of their own free will and without deceit. 
Tonsure is not enumerated among the minor orders, nor 
is it considered an order at all. 4 

Those, then, who have received the tonsure are called 
clerics — i. e., men bound to the sacred ministry. As 
that ministry has various functions, necessitating the ex- 
ercise of various powers, which are distributed by de- 
grees, it follows that there must be a sacred authority 
ruling over the whole ministry. This sacred authority is 
the hierarchy, an organization by virtue of which clerics 
are subordinate to one another and enjoy ecclesiastical 
power in various degrees. 

Three orders are of divine origin: the episcopate, the 
priesthood, and the ministry B or diaconate, taking it in the 
sense of the Church. The words episcopi, presbyteri, 
and dtaconi occur in the pastoral letters of St. Paul as 
well as in the Acts of the Apostles. But we do not meet 
with a fixed terminology until St. Ignatius of Antioch, 
and even after that there is a certain vagueness in the use 
of sacerdotes and episcopi, the terms being often em- 
ployed synonymously. 8 This fact, however, does not 
prove that the functions or powers of the two orders were 
considered to be identical. 

Besides these three, other minor ranks were intro- 
duced at an early date, owing to the manifold needs of 
the Church and the increased occupations of the clergy. 
From the beginning of the second to the middle of the 
third century there was an almost continual develop- 



eauted quite a controversy in 14, n. 43 tf. ; cf. v. Scherer, I, 313. 
France and England up to the be- S Cone. Trid., Sew. 2, 3, can. 

ginning of the Vlllth century. 6, D* sacr. ord. 

• This is now jententia com- a Cf. Brudcrs, Die Vtrfossnng 

munis, although Faynani held the der Kircke, passim (we are using 

opposite opinion; ad c. n, X, I, the Italian translation by Villa). 



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CANON 108 45 

ment of lower functions, some of which disappeared 
later, but most of which have survived to our own day. 
While the cantores, exccptores, and fossores are no 
longer among the orders proper, the subdeacons (hypo- 
diaconoi), the acolytes, exorcists, lectors, and janitors 
(ostiarii) have retained their position as clerics. Since 
the eleventh century/ subdeaconship has even entered the 
ranks of the ordines maiores, while the four others are 
styled ordines minores* These latter, though a comple- 
ment of the diaconate, are of purely human origin. 

The supreme pontificate and the episcopate are of di- 
vine origin, though they are distinct one from the other by 
reason of their jurisdictional institution. The supreme 
pontificate, which is an office not only of honor, but of 
jurisdiction in the proper sense, comprises the legislative, 
judiciary, and coercive power in their full and unlimited 
extent, as far as required by the purpose of the Church. 
Therefore the jurisdiction of the Pope is coextensive with 
the Church itself, and comprises all members of the same, 
whatever their rank or condition, as well as all those ob- 
jects which fall under ecclesiastical jurisdiction. There- 
fore the jurisdiction of the Sovereign Pontiff is called 
plena et suprenta. 

However, the power of the bishops, though subject to 
and dependent upon, this supreme jurisdiction of the 
Pope, is really ordinary, 10 i. e., given by virtue of the 
episcopal office, radically or aptitudinaliter by consecra- 
tion, fully and expeditely by confirmation or promotion. 

t Cfr. c. ii, Dist. 32 (Alex, II.); q. 3$. art. 5; Q- 37. »rt. a; Bened. 

c. 9. X, I, 14- XIV, "In fojtrcmo," Oct. so, 1756. 

8Cf. Wieland, Die EnUmcktung | 10 ff. (Bull., t. Ill, p. 291 S.); 

der tog. Ordines Mmorts {Rom. Poble-Preuss, The Sacraments, IV, 

Qmartalschrift) 1897. The theo- 19 1 7, p. 93. 

logical question whether all the or- » Cone, yatic., De EccL, c 1-3. 

dera are dislinct does not touch the 10 Cone. Vatic., De Eccl., c. 3. 
canonist. Cfr. St. Thomas, Suppl., 



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46 ECCLESIASTICAL PERSONS 

Whether this jurisdiction is given to the bishop imme- 
diately by the Pope or by God Himself through the me- 
dium of his Vicar on earth, is a question which may 
agitate a speculatively inclined theologian, but does not 
excite the canonist. The more common opinion is the 
one mentioned first, because it is certain that no bishop 
is constituted without the consent and confirmation of 
the Holy See; and hence we may say that all jurisdiction 
in the Church comes immediately from the Pope. 11 
Since, however, the episcopal jurisdiction is an ordinary 
one, it cannot be set aside by the Supreme Pontiff, as if he 
could rule the Church by his vicars, or restrict the episco- 
pal jurisdiction by undue reservations." No such power 
is included in the papal sovereignty, for the simple reason 
that the episcopate is established by God, and forms part 
and parcel of the divine organism of the Church. On 
the other hand, subordination of the episcopal jurisdic- 
tion to that of the supreme head is a necessary require- 
ment of unity of faith and government. An illustra- 
tion is furnished by the Oriental Church. 

Canon 108 says, lastly, that the other degrees existing 
among the clergy are of (purely) human institution. 
Concerning the orders and the potestas ordinis given by 
ordination, we have said enough. There are eight of 
them, now permanently fixed. As to the degrees of 
jurisdiction, introduced in course of time, they are es- 
pecially the following: cardinals, patriarchs, primates, 
metropolitans, and other prelates endowed with jurisdic- 
tion in foro externo. All these will occur again. 



11 Cfr. Mazzella, De Rel. et Ecc. t all the bishops received their juris- 

ed. 5, p. 786, whose historical ar- diction from the Pope. Wernz, 

(rumen ts. however, ire not cogent. Jus. Dtc, II, n. 737. calls tbe old 

as it is hardly possible to prove opinion "antiquated. 1 * 
that, in tbe first ten centuries, 1 - Aichner, /. c, \ 99. 



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CANON 109 47 

Can. 109 

Qui in ecclesiasticam hierarchiam cooptantur, non 
ex populi vel potestatis saccularis consensu aut voca- 
tione adleguntur; sed in gradibus potestatis 01 dims 
const ituuntur sacra ordinatione; in supremo pontifi- 
cate, ipsomet iure divino, adimpleta conditione legiti- 
mae electionis eiusdemque acceptationis ; in reliquis 
gradibus iurisdictionis, canonica missione. 



This canon, the first clause of which is taken from 
the dogmatic canons of the Council of Trent, 13 is directed 
against certain innovations which cropped out throughout 
the history of the Church, but were introduced especially 
by the so-called reformers of the sixteenth century. The 
"consent of the people " was the favorite cry of Arnold 
of Brescia and his followers, in the twelfth century. It 
was repeated by Wiclif and Huss, Calvin and Zwingli. 
Against these the Council of Trent declared it as an ar- 
ticle of faith that the people have no voice in the choice 
of ministers. The consent of the civil power was favored 
by Luther, and partly also by Zwingli at the Council of 
Zurich. Both demands are excluded by the very organi- 
zation of the Church and its nature as a societas in- 
aequalis. 

The next clause establishes the human agency by which 
the papal power is conferred, i. e. t legitimate election ac- 
cepted by the person elected. On this subject more shall 
be said in its proper place. The reason for the law here 
laid down is that the papal power is supreme, and there is 
no superior who could either ratify election to it or ac- 
cept the person elected. 



18 Cone. Trid., Seas, aj, can. 4, demned, arc called " robbers and 
De Eccl. Hitrarchia ft Ordinationt; thieves." (John 10, 1). 



a 

those chosen in the way here con- 



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48 ECCLESIASTICAL PERSONS 

The * tnissio canpnica " is necessary for all who are in- 
ferior to the Pope. For as the Lord sent his Apostles, 1 * 
so in turn they sent others to exercise their spiritual 
power with authority, and without such credentials no 
one has authority in the Church. Formerly (up to the 
twelfth century) the tnissio canonica was believed to be 
included in ordination, but now that absolute ordination is 
possible, a distinct tnissio canonica, by which jurisdiction 
is conferred, is always required. 1 * 

Can. 1 10 . 

Quamvis Praelati titulo, honoris causa, a Sede Apo- 
stolica etiam nonnulli clerici donentur sine ulla iuris- 
dictione, proprio tamen nomine Praelati in iure dicun- 
tur clerici sive religiosi qui iurisdictionem ordinariam 
in foro externo obtinent. 

The name prelate is derived from praeferre, to prefer 
[some one] to others. It is applied in the ninth century to 
abbots and abbesses, 18 and later occurs frequently in the 
Decretals. 17 At the Roman Curia, especially since the 
college of cardinals shared more largely in the govern- 
ment of the universal Church, — i. e., since the twelfth 
century, — are mentioned praelati de curia and praelati 
domus (employed in the personal service of the pope). 
Both classes constitute the Praelatura Romana, now dis- 
tributed among the various congregations, tribunals, and 
offices, and the Fatniglia Pontificia.™ A new organiza- 
tion of the Prothonotarics Apostolic has been created 



■ 



"Matt 28, 18; Rora. 10, 15. IT Cfr. cc. 41, 44, X, I, 6; c. 2, 

10 Cfr. Sftgmailer, K.-R., ed. I, X, II, 1 ; c. 3. X. I, 31 etc 

p. 147. 18 Cfr. PhillipB, KirehtnneM, 

i» Cfr. Da Cange. Glossarium, Vol. VI, 297 ff; Hinschius, K.-R., 

a. t. " PratlatHs "; Tertulliau, Dt I, 375 ff. 

Corona, III, J. 



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CANON 1 10 49 

by Pius X. • The Bull "Inter multiplices," of Feb. 21 , 
1905, determines the rights and privileges of the four 
classes of prothonotaries, 18 but does not touch the domes- 
tic prelates, nor the private chamberlains residing in or 
outside of Rome. 20 All these are honorary prelates. 

The Code says that prelates in the proper sense are 
such only as enjoy jurisdiction in foro externo. Forum 
in the primitive sense meant a market-place, where wares 
were exposed for sale. There were many such fora in 
ancient Rome. The term was also used to designate a 
judgment place, or court, on account of the publicity 
given to trials, and in this sense was transferred to the 
power of the judge, or rather to his competency. 21 From 
these two significations it is easy to construe the meaning 
of forum externum, which is nothing else but the power 
of jurisdiction in matters concerning the public order of 
the Church. This power is manifested in the exercise 
of the legislative, judiciary, and coercive function, espec- 
ially in the infliction of censures and vindictive penalties, 
as will be seen in the fifth book." 

u 

IB Cfr. A met. Eccl. Rev., Vol. 21 Cf. I. 5, Cod. Jusi., Ill, 13: 

31, p. oi,mY. "in criminoii negotio rei forum 

20 Cfr. Cat*. Eneyel., Vol. X, accutntor tcqualur." 
$10, 1. v. *' Monaignore; " Am. 22 Cfr. Putzcr, Comment., p. 24. 



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TITLE I 
INCARDINATION IN A DIOCESE 



After describing the constituted hierarchic order of 
clerics who enjoy ecclesiastical power in different degrees, 
it is natural that the code should treat of the local * hier- 
archy, or incardmation in a diocese. 

The Council of Chalcedon 2 forbade so-called abso- 
lute ordinations, and hence every cleric was assigned at 
ordination to a specified diocese, or city, or martyr's cell, 
or monastery, where he had to perform his functions. 
Hence clerics were called incardinated in a certain church 
as subdeacons, deacons, or priests. Incardination in an- 
other diocese was allowed only with the permission of 
both bishops concerned, unless the ordinary was in the 
hands of enemies or otherwise impeded.' Litterae com- 
tncfidatitiae were required for receiving strange clerics 
or monks into dioceses and monasteries not their own.* 
In course of time, especially since the twelfth century, the 
old discipline was relaxed and various titles of ordina- 
tion were, at least practically, admitted. But the Coun- 
cil of Trent B returned to the old discipline, and the n»;w 
Code upholds its decision. 



1 See the historical note under 8 Cfr. c. 5, dist 71; c. 6, (list. 74. 
canon 216. 4 Cfr. Rtg. S. I rmd ., c. 61; c 7, 

2 Can. 6; cfr. c. 1, dist 70; c. 8, dist. 71. 

1, dist 71; c 17. 6°, III, 4, De 6 Sen. si, c. 16, Dc Rtf. 
Pr04b. 



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CANON in 51 

Can. hi 

§ 1. Quemlibct clericum oportet esse vel alicui dioe- 
cesi vel alicui religioni adscriptum, ita ut clerici vagi 
nullatenus admittantur. 

§2. Per receptionem primae tonsurae clericus ad- 
scribitur seu, ut aiunt, incardinatur dioecesi pro cuius 
servitio promotus fuit. 

After having stated, in can. 107, that there are two 
classes of persons, clerics and laymen, and that both may 
be religious, the Code decrees that every cleric must be- 
long either to a diocese or to a religious order. Both dio- 
ceses and religious orders or congregations may be looked 
upon as corporations in the canonical sense. Every 
clergyman must therefore be a member of one or the 
other. This is necessary even from a juridical point of 
view. For a regulated administration requires that every 
subject should belong to some municipality or corporation, 
whose duties and obligations he shares. 

A cleric becomes incardinated in a diocese or religious 
community at the moment when he receives the first ton- 
sure, 6 because at that moment he enters the clerical 
stat- , which, though in abstracto it signifies the sacred 
ministry in general, yet in concrete means that part of 
the Church which is assigned for a clerk's activity. The 
phrase, " to the diocese to which he is promoted," includes 
not only the titulus servitii, but any title on which one is 
ordained. For § 1 simply forbids vagrant clerics. 

Can. 112 
Praeter casus de quibus in can. 114, 641, § 2, ut 

It is called fi»t tonsure because it presupposes the renewal of the tonsure. 



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52 ECCLESIASTICAL PERSONS 

clericus alienae dioecesi valide incardinetur, a suo 
Ordinario obtinere debet litteras ab eodem subscriptas 
excardinationis perpetuae et absolutae; et ab Ordinario 
alienae dioecesis litteras ab eodem subscriptas incardi- 
nationis pariter perpetuae et absolutae. 



Can. 113 

■ 

Excardinationem vel incardinationem concedere nc- 
quit Vicarius Generalis sine mandato speciali, nee Vi- 
carius Capitularis, nisi post annum a vacatione sedis 
episcopalis et cum consensu Capituli. 



Can. 114 

Habetur excardinatio et incardinatio, si ab Ordinario 
alienae dioecesis clericus benencium residentiale ob- 
tinuerit cum consensu sui Ordinarii in scriptis dato, vel 
cum licentia ab eodem in scriptis concessa e dioecesi 
discedendi in perpetuum. 

Can. 115 

Etiam per professionem religiosam quis a propria 
dioecesi excardinatur, ad normam can. 585. 

Can. 116 

Excardinatio fieri nequit sine iustis causis, et ef- 
fectum non sortitur, nisi incardinatione secuta in alia 
dioecesi, cuius Ordinarius de eadem priorem Ordina- 
rium quantocius certiorem reddat. 



Can. 117 

Ad incardinationem alieni clerici Ordinarius ne de- 
veniat, nisi: 



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CANON 117 53 

z.° Necessitas aut utilitaa dioccesis id exigat v ct 
salvia iuris praescriptis circa canonicum ordinationis 
titulum; 

2. Ex legitime) documento sibi const it erit de ob- 
tcnta legitixna excardinatione, et habuerit praetcrea a 
Curia dimittente, sub secreto, si opus sit, de clerici 
natalibus, vita, moribus ac studiis opportuna testi- 
inonia, maxime si agatur de incardinandis clericis di- 
versae linguae et nationis ; Ordinarius autem dimittens, 
graviter onerata eius conscientia, advigilare debet ut 
testimonia sint veritati conformia; 

3°. Clericus iureiurando coram eodem Ordinario 
eiusve delegato declaraverit se in perpetuum novae dio- 
ecesis servitio velle addici ad normam sacrorum ca- 
nonum. 

Many decrees 7 were issued in the course of about 
twenty years for the purpose of regulating the matter of 
excardination and incardination. They were all based 
on the Tridentine law and upon the Constitution " Spe- 
culator es" of Innocent XII, Nov. 4, 1694. This pontiff, 
a canonist of renown, determined the question of the 
episcopus proprius and in connection therewith, also 
touched the subject of excardination. According to the 
Constitution mentioned every layman who left the dio- 
cese where he was born or where he had a legitimate 
domicile, had to be excardinated by his own bishop if he 
wished to receive tonsure from another. 8 Our Code does 
not mention excardination proper, but simply says that 
by the first tonsure one becomes attached to the diocese 
for which one is to be ordained or promoted. Hence 
the case of laymen now no longer enters the question 
of excardination or incardination. 

T Cfr. A. Ap. S., II, 103; IV, 149; Vol. 30, 393 fl. 
V, 34; VI, i8aff.; Am. Eccl Rtv., «Cfr. Richter, Trii., p. 336, «3 



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54 ECCLESIASTICAL PERSONS 

The new legislation may be summarized as follows: 

a) Letters of cxcardination and incardination arc re- 
quired; 

b) Such letters cannot be given except for just 
reasons ; 

c) Both excardination and incardination must be ab- 
solute and perpetual; 

d) Excardination does not take effect until incardina- 
tion has been granted. 

These are the four salient points. Hence everything 
must be done in nmting, with signature and seal. In 
former decrees it was required that the cleric should be 
minutely described as in a passport. The vicar-general 
needs a special mandate to issue such letters, and the 
vicar-capitular is allowed to grant them only after a 
year's vacancy. The reason for excardination must be 
just, and considered carefully by the Ordinary. It may 
be based either on necessity or utility ; fi hence a reason of 
either kind suffices. Necessity could be urged if there 
were a penuria sacerdotum, either temporary or perma- 
nent; utility, if there were need of help in diocesan in- 
stitutions, — schools, seminaries, parishes of diverse lan- 
guages, etc. The bishop himself is the judge about the 
existence of such reasons. 

Excardination or incardination is absolute and perpet- 
ual if no condition is added ; such a condition would be, 
for instance, " if you do not stay in my province," or "if 
you do not apply to such and such a bishop." No condi- 
tions are admitted, and if they be added, must be looked 
upon as non-existent. What u perpetual " means is 
clear; it precludes incardinating a cleric for a time only, 

e. g., as long as help is needed. 

< 

• Cone. Trid., Seas. 23, c. 16, D§ Rif. 



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CANON 117 55 

Excardination does not take effect until incardina- 
Uon is consummated. This is a noteworthy clause. It 
protects clerics against harsh measures unauthorized by 
law, and is simply a consequence of the law which or- 
dains that every cleric should belong to some diocese. A 
bishop may dismiss a priest usque in indefinitum, but the 
priest continues to belong to his diocese as long as he has 
not been incardinated elsewhere, and, therefore, is en- 
titled to decent support. 

The bishop, however, has the right to give one written 
permission to take leave of absence from his diocese in 
Perpetuum (can. 114). Permission (licentia) t however, 
generally presupposes a demand, as the word " concessa " 
also implies. Wherefore, in that case, the cleric asking 
for such a permission has to take the consequences upon 
himself. As to a residential benefice, i. e. t one which 
requires lasting residence in a strange diocese, for 
instance, a parish or canonical office, excardination and 
incardination are implied in the very grant thereof. The 
same is to be said concerning religious profession which 
is made by perpetual (either solemn or simple) vows 
(can. 505). For by such a vow one becomes a member 
of a religious body. 

The oath to be given at incardination is that which 
is taken by touching the Gospels as a witness of one's 
earnest intention. The S. C. Cons, has decided that, 
if this oath was perchance omitted at the time of incar- 
dination, the bishop cannot therefore declare the incar- 
dination invalid. 10 This decision, we believe, is not 
overthrown by the Code, because the wording of can. 
107, though prohibitive, is not nullifying. 

10 Jan. 31, 1913 (A *P- S., V, 34)- 



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TITLE II 
RIGHTS AND PRIVILEGES OF CLERICS 

If the clerical state, on account of its hierarchic power, 
is superior to the lay state, it follows that this superiority 
must be manifested by outward signs or rights. This is 
a dictate of reason, as the history of all civilized nations 
attests. Wherever there was a legally acknowledged 
priesthood, it enjoyed marked distinctions, not only under 
the Jewish theocracy, but also in the Oriental empires as 
well as in the Greek and Roman States. 1 The Christian 
priesthood and ministry could not form an exception. 
But it would be shooting beyond the mark if we were to 
assert that each and every privilege or right vindicated 
to the clergy in the following canons is of natural or 
divine law. For not only is it contrary to logic to deduce 
a particular conclusion from a general and vague premise, 
on the ground of their being of the same nature, but even 
scriptural and historical indications would fail to bear 
out such conclusions regarding some of these privileges. 

We premise this in order to caution the reader against 
certain unproved assumptions. 

The caption of our Title reads : Rights and Privi- 
leges of Clerics." No precise distinction is made be- 
tween rights and privileges, and hence a margin is left for 
controversial speculation. The whole class of these rights 

c 

l Cfr. Handbuch der Kttus. At- Kultus der Romtr, 1902, pp. 63 ft.; 

tertumswissenschafUn, O. Gruppe, 339 f.; 410 ff. Ramsay-Lanciani, 

Grirch. Mythologie, 1906, II, 10*0 Manual of Roman Antiquities, 1901, 

and passim; Wiswwa, Hellion und pp. 374 S. 

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CANON 118 57 

is known by the general name of immunities. 1 Immu- 
nities comprise the privilegia canonis et fori, beneficium 
competentiae, and immunity in the strict sense. All these 
privileges belong to the clergy by virtue of their state, 
and remain as long as they are not forfeited by the loss 
of that state or by virtue of the penal law. 

Can. 118 

Soli clerici possunt potestatem sive ordinis sive 
iurisdictionis ecclesiasticae et beneficia ac pensiones ec- 
clesiasticas obtinere. 



This is a strict right, not a mere privilege ; a right re- 
served to the clergy because the divine organization of 
the Church enjoys the peculiarity that ecclesiastical power 
is granted only to those chosen by Christ. Hence what- 
ever pertains to the hierarchical power, order, and juris- 
diction can be conveyed only to such as belong to the 
hierarchy. Besides, since the material emoluments are 
granted on account of the spiritual office, which can be 
exercised only by hierarchical persons, ecclesiastical 
benefices and pensions can be obtained only by clerics. 
Therefore laymen, as such, cannot be ordained, as long as 
they have not received the first tonsurc. a If the examples 
of St. Nicholas and Ambrosius arc urged against this 
principle, we need not resort to Gratian's expedient, 4 but 
simply answer that their calling was divinely sanctioned, 
and rather forms an " exceptio quae firmat regulam," than 
a breach of principle. Laymen, as such, cannot obtain 
jurisdictional power in matters strictly spiritual or ec- 

c 

2Cfr. X, III. 49, Dt Tmm. Ecci, 4Cfr. c. 8, Dist. 6i. where he 

and the commentators thereon. speaks of insufficient education and 

* Cfr. c. 8, Dist. 6 i . c contr*, c> spiritual inferiority. 
7, X, II, a6, Dt prattcrift. 



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58 ECCLESIASTICAL PERSONS 

clesiastical; 5 neither can they obtain any benefice which 
is of a purely ecclesiastical nature ; though by special con- 
cession they may be patrini of benefices* or have the 
advowson, as the English law puts it 



THE PRIVILEGIUM CANONIS 

T 

Can. 119 

Omnes fideles debent clericis, pro divcrsis eorum 
gradibus et muneribus, reverentiam. seque sacrilegii 
delicto comraaculant, si quando clericis realern iniu- 
riam intulerint. 



The relation existing between a superior and an in- 
ferior enjoins respect for authority and obedience on the 
part of the subordinate. Therefore the clergy always 
take precedence over the laity. 

The second clause of our canon contains the so-called 
privilegium canonis, which dates back to the second Lat- 
eran Council, A. D. 1139. The violent acts perpetrated 
by Arnold of Brescia and his followers against priests 
and religious led the Council to repeat and summarize 
previous synodal acts of Rheims and Pisa in one canon; 
hence the name. This canon, the fifteenth of the Lat- 
eran Council/ decreed that whoever maliciously lays 
hands on any cleric or monk, thereby incurs ipso facto 
excommunication, from which, except in danger of 
death, no bishop shall dare to absolve him, until he pre- 
sents himself before the pope to await his sentence." 

Our canon speaks of a sacrilege, but does not mention 
its penalty, which belongs to the penal Code. 8 Who are 



■ C. 2, X, II t 1: "Laid eeclesias- Trid., 34, can. 34, De Matr. 
tica negoiia tractor* non pnesu- 6 Cfr. Reiffenstuel, II, I, p. 75. 

mant " ; c. 8, X, I, 43, De arbilrie; 1 Cfr. c. ao, C. 17, q. 4. 

concerning matrimonial causes cfr. I Cfr. c. 3343, which mitigated 



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CANON 120 59 

meant by clerici is evident from can. io8, § x, vis.: all 
those who have received the first tonsure, but also all 
religious of both sexes, even novices, as well as tertiaries 
who live in common and wear the religious habit, and 
hermits who live in common and have received the habit 
from the competent authority. 9 

The injury which is declared to be a sacrilege, must be 
real, that is, done to the cleric himself by act or deed, not 
in words only ; thus imprisoning I0 a cleric or throwing 
mud at him, would be a real injury. 

The action must be injurious, which implies that the 
offended person is justly 11 indignant at the perpetrator 
and that the latter was aware of the sacred character of 
his victim. Self-defence against a cleric is no injurious 
action. Though there is, according to our view at least, 
no specific difference between a sacrilegious act com- 
mitted against a higher and one committed against a 
lower cleric, yet on account of the public order the pen- 
alties imposed differ according to the rank of the injured 
party. This is clearly stated in the penal Code. 

THE PRIVILEG1UM FORI 

L 

Can. 120 

o 

§ z. Clerici in omnibus causis sive contentiosis sive 
criminalibus apud iudicem ecclesiasticum conveniri de- 
bent, nisi aliter pro locis particularibus legitime pro- 
visuxn f uerit. 

a 

§ 2. Patres Cardinales, Legati Sedis Apostolicae, 
Episcopi etiam titulares, Abbates vei Praelati nuiiius, 

supremi religionum iuris ponti ftcii superiores, Ofiiciales 

the penalty for injury done to the Ap. Sedis, 1804, p. 73. 

lower clerg? (not prelates) by re- lOCfr. c. 1, 3, 4, 10, 24, 54, X, 

■erring it to the Ordinary. y, 39- 

• Cfr. D'Anmbale. Comment, in H If ft clergyman has provoked 



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60 ECCLESIASTICAL PERSONS 

maiores Romanae Curiae, ob negotia ad ipsorum 
munus pertinentia, apud iudiccm laicum convcniri nc- 
queunt sine venia Sedis Apostolicae ; ceteri priviiegio 
fori gaudentcs, sine venia Ordinarii loci in quo causa 
peragitur; quam tamen licentiam Ordinarius, praeser- 
tim cum actor est laicus, ne deneget sine iusta et gravi 
causa, turn maxime cum controversiae inter partes 
componendae frustra operam dederit. 

§ 3. Si nihilominus ab eo qui nullam praehabuerit 
veniam, conveniantur, possunt, ratione necessitatis, ad 
vitanda maiora mala comparers certiore tamen facto 
Supcriore a quo venia obtenta non fuit. 



This canon contains, as it were, the ancient and mod- 
ern history of the privilegiutn fori in a nutshell. The 
privilege, then, signifies that clerics in civil as well as 
criminal causes should be judged by an ecclesiastical, and 
not by a lay tribunal. It has been frequently asserted " 
that this privilege is of divine or natural law, and argu- 
ments from the Old Testament as well as from pagan 
customs have been brought forth in proof. However, a 
little historical reflection is sufficient to disprove these 
pretensions. For neither theory nor practice has always 
been uniform. Rather extensive prerogatives were 
granted to bishops. Constantine permitted them to have 
some influence in deciding between dissentient secular 
judges. 18 Valentinian III granted the right of deciding 
civil cases of the clergy who sought the episcopal tribunal; 
but criminal cases of clerics had to be brought before 
the lay judge. 14 Justinian excluded from the competency 



inch treatment by an insult of- 12 Cfr. the Commentators on X f 

fered to tbo perpetrator'* wife, II, i, and X, III, 49. 
mother, daughter or sister, he can- 18 Cf. Euseb., Vita Const., IV, 

not be said to be justly indignant 27; Cod. Thtod., VI, 281. 

l* Nov. J ;, Am. 454; Gutbofrcd, 



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CANON 120 61 

of lay judges all causes of monks and nuns; and con- 
cerning the civil causes of clerics he ordained that they 
might be brought before the bishops, and only in case 
these should fail to reach a sentence should the lay 
judges be called upon to decide. In criminal cases the 
accused cleric was first to be cited before the episcopal 
court and then punished by the civil court. 15 With little 
differences the same practice was followed in the West, 
though here the influence of Pseudo-Isidore cannot be de- 
nied, as a glance into Gratian's Decree shows. 18 Since 
the ninth century the prelates and inferior clerics claimed 
immunity from lay courts. After the Reformation, and 
even more so after the French Revolution, under the in- 
fluence of Rationalism, the privilegiutn fori was curtailed, 
in some instances (Austria, Bavaria, Sicily) with the con- 
sent of the Holy See by way of concordats. 17 

The latest occasion where the privilegiutn fori was pub- 
licly and emphatically reasserted was in the Verdesi-Bric- 
cardelli case, in which certain Cardinals were cited to ap- 
pear in court, and were excused only on the ground 
that exemption was attached to the royal order of the An- 
nunziata, to which they happened to belong. This incident 
called forth the famous Motu proprio of Pius X, " Quan- 
tavis diligentia" of Oct. 9, 1911, which caused unneces- 
sary disturbance in more than one parliament. 18 

After this historical preliminary let us see what the 
Code states. It first vindicates (§1) the privileged court 
for the whole clergy as far as the term clergy extends, i. e. f 
all those who enjoy the privilegiutn canonis. But it also 



Q 



VI, 417; Baroniua, Annak EccU ad Pub., p. 78*1. 

Annum 4$g. IT Austrian Concordat, art. 13; 

IB Nov,, 83. I 1; 123. c. 37- Aichner, Appendix, p. 6: Niuri. 

i« Cfr. cc. i f 3, 9, xo, C, XI, q. Conventions, 1809, p. ioj. 

1 (all Pseudo-Isidorian sources) ; 10 Cfr. A. Ap. 
mee Bachofen, Summa Juris Eccl. 



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62 ECCLESIASTICAL PERSONS 

makes an exemption, viz., for those countries or places 
for which special provision has been made. Such provis- 
ion is made by concordats and in other ways. §2 
distinguishes between the higher and the lower clergy. 
The higher clergy are the cardinals, legates of the Apos- 
tolic See, bishops, praelati nullius, the superiors general 
of papal orders, and the higher officials of the Roman 
Curia. Who these officials are is not apparent either from 
this canon or the organization of the Roman Court, but 
the Prefect, the Secretary and the Subsecretary are doubt- 
less included. The term legates most probably includes 
Apostolic delegates. 19 

After the enumeration of the higher officials of the 
Roman Court follows a comma, and then, " on account of 
affairs pertaining to their office." The question may arise 
whether this addition refers to all the persons (cardinals, 
legates, bishops, prelates nullius, superiors general, higher 
officials of the Roman Court) or to the last-named only. 
In the latter case the higher officials of the Roman Curia 
might be cited before a civil court for matters not per- 
taining to their office, whilst the other persons named 
could not be summoned at all. Can. 2341 refers the 
clause, " on account of affairs, etc.," without a comma, 
only to the higher officials of the Roman Court, and we 
believe there was a special reason to mention these mat- 
ters in connection with the Roman officials, on account 
not only of the importance of the matter, but also because 
they belong to the papal authority, and, we might say, 
household. On the other hand, the privilegium fori must 
be vindicated to these officials to the full extent, accord- 
ing to § 1. 

i» Cfr. can. 267. 1 3. — The and provincials of communities or 

maicrcs religionum iuris pontt- congregations approved by the 

ficii superiors are Abbot Primate, Holy Sec. Cfr. c 488. 
abbots president, abbots, generals, 



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CANON 120 63 

The next clause of § 2 treats of clerics of inferior rank, 
such as vicars-general, honorary prelates, pastors and 
their assistants, and religious. All these must first obtain 
permission of the Ordinary before they may licitly appear 
before a civil court- Here no mention is made of matter 
pertaining to their office. Note that religious, though 
exempt, must have leave from the Ordinary of the dio- 
cese, not only the permission of their own superior, who 
cannot, however, withhold it if the Ordinary has given 
his. Ordinaries are in the last clause of the same § 2 
exhorted to be liberal unless they have special and weighty 
reasons for refusing permission. 

§ 3 of canon 120 provides for cases where clerics are 
summoned without the necessary permission, and estab- 
lishes that only in cases of necessity and when greater 
evils might follow if the clergy would not appear, the 
higher as well as inferior clergy are allowed to obey the 
summons of a civil court. However, from can. 2341 it 
is evident that the penalty of excommunication reserved 
to the Holy See modo speciali would be incurred if a car- 
dinal, an Apostolic legate, a higher official of the Roman 
Court, or the Ordinary of the diocese would be summoned 
by civil authorities without the necessary permission. 
The same penalty would be incurred if another than the 
diocesan bishop, though but titular, or a prelate nullius, 
or a religious superior general of a papal institute would 
be summoned. If any of the lower ranks of the clergy 
would be called to court, the penalty for a cleric would 
be suspension, and for a layman some penalty to be deter- 
mined by the Ordinary. 

Now two questions of importance must be answered : 

(a) Do the prxvilegium -fori and its concomitant pen- 
alty also apply in the case where one is called as a witness 
only? The text ibique ad esse as well as the interpreta- 



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tion given by Cardinal Gennari answer affirmatively. 20 
We also know that this was the stand taken by the Roman 
Curia in the Verdesi case. 

(b) May a custom be admitted against the privilegiutn 
fori? This may also be affirmed, as appears from the 
answer of Cardinal Merry del Val to the ambassador of 
Prussia, Muhlberg, officially " printed in the Osservatore 
Romano of Dec. 16, igu. Whether this custom may be 
upheld in the U. S. is difficult to say in view of the enact- 
ments of the Second PI. Council of Baltimore, n. 156, and 
the Third, n. 84. The clause inserted by the latter : * as 
far as it may be defended among us/' seems to admit the 
contrary custom. Besides, there is no doubt that English 
customs prevail in our country, and these would point to 
the existence of a contrary custom. 22 Lastly, our canon 
does not reprobate such a custom. 



PERSONAL IMMUNITY 



Can. i2i 

Clerici omnes a servitio militari, a muneribus et pub- 
licis civilibus officiis a statu clericali alienis immunes 
sunt 

This canon comprises the whole range of personal im- 
munity which the clergy have de iure et facto enjoyed 
for centuries. On just what ground, or law, or custom 
this freedom is based, the Code does not decide. Neither 
has any dogmatical definition ever been given in this re- 
gard. For the text in the Decretals 28 that churches and 



20Cfr. Monitor e Eccles., 1912, p. f. K.-R., 1915, 397 f.; Monitor* 
507. Ecctes., 1911, p. 507. 

22Cfr. Am. Eccl. Rev., Vol. 47. 
31a ff. 

28 c. 4, C t III, ao, Dt Immuni- 
ty*. 



11 The Osservatort is not the of- 
ficial organ of the Vatican, but in 
this case the latter employed It to 
five an official answer. Cfr. Arckiv 



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CANON 121 65 

ecclesiastical persons and things enjoy immunity by divine 
right, is merely an assumption not contained in the dis- 
positive part of the law. The Council of Trent 2 * appeals 
to the rulers to respect the privilege, but advances no defi- 
nition. The Syllabus condemns the propositions that 
clerical immunity originated in a grant of the civil govern- 
ment, and that it could and should be abolished. 26 Hence 
no authentic or de fide definition has been issued by the 
Apostolic See concerning the immunity of the clergy. 
What we said concerning divine law in reference to the 
privilegium fori applies here also. 

The clergy are free from military service. That 
priests at least should be exempt from carrying and using 
arms seems very becoming and just. For their state 
demands charity, meekness, and forbearance, which 
shrink from bloodshed. Besides their high calling re- 
quires that they hold themselves aloof from the strife and 
turmoil of warfare. In times of war especially are they 
the messengers of spiritual and even corporal mercy. 
The sacerdotal character resembles that of the Prince 
of peace, whose hands were not stained with blood, 
whose lips spoke nought but love, even for His enemies, 
whose heart embraced all. We will not speak of the 
dangers accruing to the priestly life from the atmosphere 
of garrisons and trenches. If any one should trump up 
democracy — a term much abused but seldom rightly 
understood — as demanding equality of all citizens, we 
answer that the Athenians and the Romans were as good 
democrats as we moderns, and yet accorded a privileged 
place to their priests. True democracy does not exclude 
respect for the things that pertain to God, who, being the 
author of nature, is also the author of the democratic 

a 

- 

24 Scss. 25, c. 20, Dt Rtf. ner, Dtt Syllabus, 1905, p. 167. 

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66 ECCLESIASTICAL PERSONS 

form of government as well as of the monarchical. We 
have dwelt upon this point because it seemed necessary 
in view of present tendencies. For the day will come — 
and we hail it — that compulsory military service will be 
introduced into our republic. Why not take our little 
sister republic of Switzerland for a model? There, no 
one physically fit is exempt from military service. After 
having passed the medical examination and being found 
capable, the young man, at the age of twenty, must serve 
for ten weeks as a recruit of infantry, or for twelve 
weeks in some of the other units. After that, two or 
three weeks every year, when the manoeuvres take place, 
must be spent in the military service, only those of the 
clergy being exempt who have received at least subdea- 
conship or definitively entered the religious state. 
Those who are exempt from service must pay the military 
tax. Of course military chaplains with the rank of cap- 
tain are also drafted. We cannot see any damage either 
to the clerical state or to the country in such conditions. 
The little Swiss Republic, surrounded as it is by four 
great powers, has proved itself a noble country, ready and 
able to fight for liberty and democracy without deeming 
it necessary to disturb the ministers of religion in the 
possession of their time-honored immunity. 29 

Obligations or munera (sordida) are such kinds of 
labor as are commonly called base because performed 
only by physical labor, and were always looked upon 
as unbecoming to cultured persons; or, as Blackstone 
says, 27 such as are fit only for peasants or persons 
of servile rank. These were called services of villein- 
socage. Hither belonged the pedagium (angaria), or 



'- 



20 Concerning the custom of the the University of Fcnn., Vol. IV, u. 
Middle Ages in England, see Trans- 3, p. 28 ff. 
'•aliens and Reprints, published by 27 Commentary, II, 60 f. 



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CANON 122 67 

road-repairing, the podagium, or upkeep of bridges, 
the ius tnetatus, or quartering of soldiers, etc. Such 
services were not demanded from the clergy. 28 But now 
that they arc commuted into poll-taxes, it would be diffi- 
cult to exempt the clergy from paying these taxes. Other 
taxes, on personal property especially, the clergy have to 
pay like the rest. 

Public offices of a civil character are, e. g. t the post- 
mastership, the mayoralty, the offices of bailiff, constable, 
alderman, trustee, guardian, etc. The last-named two 
offices a cleric may assume for relations, orphans, and 
the poor. 28 

beneficium competentiae 
Can. 122 

Clericis qui creditoribus satisfacere coguntur, salva 
tint quae ad honestam sui sustentationem, prudenti 
ecclesiastici iudicis arbitrio, sunt necessaria, firma ta- 
rn en eorundem obligatione creditoribus quamprimurn 

satisfaciendi. 

■ 

EL 

This is what is known as the privilege or benefit of 
the clergy in case of insolvency. Its origin is not only 
obscure, but also mystic, on account of the popular com- 
parison of the clerical state with the military profession 
(militia coelestis — militia terrena). With this compari- 
son in mind the commentators on the famous chapter 
" Odoardus ".(c 3, X, III, 23) applied to the clergy the 

28 Cfr. c 4. X, III. 49. Dt Imm. tags, and not according to the ex- 
It ;s to be noted, however, that tent of his ecclesiastical benefice" 
c. 7 enjoins the clergy to assist tht v. Translations and Reprints, Vol. 
commonwealth if the layman's help I, n. 6, p, 10. 

alone does not suffice. The "Great 39 Cfr. cc. I, 3. X, I, 37; c - «t 

Charter" of England (1215), n. 22, X, III, 50; Aichner, /. c, 5 73. If, 

readi: "A clergyman shall be fined for England see Blackitone-Cooley, 

only in proportion to his lay hold- I, 376. 



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privileges of the imperial soldiers whose salary could 
not be entirely garnisheed by creditors. 80 The chapter 
alleged really mentions only the dictum of Pope Greg- 
ory IX, that a clergyman declaring himself insolvent 
should not, on that account, be excommunicated, but 
should give security that in case of his obtaining a bet- 
ter income, he would pay his debts. This is the sole 
basis for the simile of the " spiritual warfare or tnilitia 
Christi" Nevertheless the canonists 81 clung to the inter- 
pretation and now it has been perpetuated in the new 
Code. Now-a-days this matter is settled by civil laws, 
which are no longer as rigid as were those of the Mid- 
dle Ages. The meaning of the canon therefore is that a 
sufficient support should be left to an indebted clergyman 
and, especially, that his freedom should not be curtailed. 
But the obligation of paying his debts — the security of 
the Decretals — certainly remains. 

loss of the clerical privileges 

Can. 123 

Memorat is privileges clericus renuntiare nequtt ; sed 
eadem amittit, si ad statum laicalem reducatur aut 
privatione perpetua iuris deferendi habitum ecclcsia- 
sticum plectatur, ad norraam can. 313, § x, 2304; rccu- 
perat vero, si haec poena rcmittatur aut ipse rursus 
inter clericos admittatur. 

The privileges enumerated, though cleaving to the 



1© Cfr. I. 33, Cod. Just., I, 3; nani, ad c. eit, where he mention! 

Nov.) iaSg c. 10; 1. 1, j, Dig., v. , the penalty imposed on a deeply in- 

17; Zipperling, Das Wsstn dss debted clergyman who was set upon 

bsntfiemm competentias, 1907, p. a donkey and had to wear a green 

94 ft*. biretta. 

■1 Cfr. Kneel, III, 93, o. 1: Fag- 



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Clergyman, and in so far personal, belong to the cleri- 
cal state, i. e. } to the clergy as a class, not to the indi- 
vidual in the first place, and therefore they cannot be 
waived by private agreement, even though this be con- 
firmed by an oath. 12 They are lost, however, by degra- 
dation, whereby a cleric is reduced to the lay state." 
The right of wearing the clerical garb is forfeited by 
deposition, followed by stubborn refusal to do penance,' 4 
and, furthermore, by reduction to the lay state (can. 

Miff.). 

Clerics in minor orders lose their privileges ipso iure 
according to can. 132, § 2, can. 136, § 3, can. 141, § 2, be- 
cause by acts done against these canons they reduce 
themselves to the lay state. 



■ 
9 



82Cfr. c. 1 a, X, II, a. MCan. 3304. 

8«Can. 3305; cfr. c. 14. X, V, 39, 

Dt tent, cxcom. 



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TITLE III 
OBLIGATIONS OF CLERICS 



RELIGIOUS DUTIES 



Can. 124 

Clerici debent sanctiorem prae laicis vitam interio- 
rem ct exteriorem ducere cisquc virtutc ct recte factis 
in exemplum excellere. 



Can. 125 

Curent locorum Ordinarii: 

x.° Ut clerici omnes poenitcntiae sacramcnto fre- 
quenter conscientiae maculas eluant; 

2. Ut iidem quotidie orationi mentali per aliquod 
tempus incumbant, sanctissimum Sacramentum visi- 
tent, Deiparam Virginem mariano rosario colant, con- 
scientiam suam discutiant. 



Can. 126 

Omnes saccrdotcs saeculares debent tertio saltern 
quoque anno spiritualibus excrcitiis, per tempus a pro- 
prio Ordinario detenninandum, in pia aliqua religio- 
save domo ab eodexn designata vacare; neque ab eis 
quisquam eximatur, nisi in casu particular^ iusta de 
causa ac de expressa eiusdem Ordinarii licentia. 

These three canons refer to the religious life of the 
clergy, who in virtue of their divine calling and the 
sacred ministry which they exercise, are obliged to gov- 

70 



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CANON 127 ft 

era their conduct in accordance with these laws. The 
retreat master as well as the spiritual director will find 
ample material in the ancient sources of Canon Law 1 for 
fit subjects to speak on. This is not the place to enlarge 
upon that subject. We would merely draw attention to 
the fact that a retreat should not form the occasion for 
belittling the science and application of Canon Law or 
for concentrating the entire attention on the authority 
of the bishop. Suum cuiquel 

clerical obedience 

Can. 127 

Omncs clerici, praesertim vero prcsbyteri, spcciali 
obligatione tenentur suo quisque Ordinario revercn- 
tiam et obedientiam exhibendi. 

Can. 128 

Quoties et quamdiu id, iudicio proprii Ordinarii, 
exigat Ecclesiae necessitas, ac nisi legitimum impedi- 
mentum excuset, suscipiendum est clericis ac fideliter 
implendum munus quod ipsis fuerit ab Episcopo com- 
missum. 

The Code mentions first the special obligation of pay- 
ing reverence as well as obedience to the Ordinary. Rev- 
erence is due to a superior from his inferiors, 1 and con- 
sists in external marks of respect, e.g., rising in his 

1 Cfr. Dist., 13-50; c 5. C. 6, q. q. 1; c. 18. C II, q. 11; c. 10. C. 
1; X. Ill, 1; 6°, III, 1; CUm., Ill, x8, q. 2; cc. a. 7. 9. X, I, 33. See 
1 j Trid., Sess. 22, c. 1; Sera. 23. c. Bened. XIV, " Etri minim*," Feb. 7, 
11, 13; Seas. 25. c 1, D* Rtf.; 174*, \0 {Bull., Prati, Vol. I, p. 
Gasparri. Coder Juris Can., p. 29, 137L), especially concerning; the 
enumerates 28 Apostolic Constitu- duty of priests to teach the 
tiom and Letters to that effect. catechism. 

2 Cf. c. 3. 6, Dist- 23: c. 24, C. 7, 



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73 ECCLESIASTICAL PERSONS 

presence and giving him the first place. 8 Other signs, 
e. g. f kissing the Bishop's ring or hand, are more or less 
conventional, and depend upon local custom. Reverence, 
therefore, is outwardly manifested by giving precedence 
to the superior and showing him such signs of respect as 
are customary. 

The obedience here inculcated is called canonical, be- 
cause based upon the rules laid down by the Church. 
At his ordination a cleric simply promises to obey the 
Ordinary and his successors. The object and extent of 
this obedience is determined, on the one hand, by the cler- 
ical state and office, and, on the other, by the extent of 
the episcopal jurisdiction. The bishop is entitled to enjoin 
or enforce the common law which governs the clerical 
state and office in general. The obedience of the clergy, 
therefore, extends to whatever concerns their state as 
such, and in this matter no exemption can be claimed. 
The office of a cleric is partly general and partly particu- 
lar. It is general in so far as it is given by virtue of the 
different orders — subdeaconship, deaconship, priest- 
hood.* Therefore, whatever belongs to his respective 
office, a cleric is not at liberty to refuse to perform. 

But there is another office attached to the clerical state 
(can. 145), which involves the exercise of ecclesiastical 
Power in a certain station or measure. The latter is men- 
tioned in can. 129. Canonical obedience obliges a cleric 
to take upon himself an office duly assigned by his Ordi- 
nary, and to discharge that office faithfully, be it that of 
parish priest, assistant, chaplain, teacher, etc. He is 



D 



• Cfr. Smith, Elemtntt, I, p. 217. deacon In the cathedral church. S. 

♦ However, Ihii binds only in C. C. Nov. 26, 1701; Aug. 19, 1701, 
general, not for a particular church. " Auxvnana " (Ricbter, Trid., ao8, 
Thus, t. g., a parish priest, who ii n. 8). Lehmkuhl in the Linger 
not canon of a cathedral, cannot be Quarteischrifl, ipoo (Vol. 53), p. 



compelled to act at deacon or sub- 86 f. 



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CANON 128 73 

bound to do this by virtue of his ordination for and 
incardination in the diocese, and because the clerical state 
is one of labor, not leisure. Though the promise of obe- 
dience is not an oath which would constitute clerics vas- 
sals of the bishop, it partakes of the nature of religion, 
which links the clergyman to the legitimate power of 
the diocese. 

From this obligation a cleric is free in two cases only: 
(1) if the Church does not need him, or (2) if he has a 
legitimate excuse. 

(1) In our country, and after the great war in most 
other countries, there is not likely to be an oversupply of 
priests. 

If the bishop insists upon a priest serving in his diocese, 
he must provide that priest with an adequate living. 6 A 
clergyman not provided with any ecclesiastical benefice 
or office in the diocese cannot be compelled to take part 
in processions, unless there is a legitimate custom to the 
contrary. 6 

(2) A legitimate excuse exempting a cleric from ac- 
cepting an office would be a physical impediment, for 
instance, poor health; or a bodily defect which might 
prove a serious obstacle to his exercise of the office ; or 
a moral obstacle, such as scrupulosity; or enmity on the 
part of the people ; or lack of practical knowledge or pru- 
dence. 7 Where no such excuse exists, a cleric is bound 
to obey his bishop when the latter assigns him to a charge. 
He must also heed the bishop's injunctions and precepts, 
even in matters which are only indirectly connected with 
the clerical state and office. In the Constitution of Leo 

5 S. C. C. Jan. »6, 1833. Inst., 31, n. 1 f. 
"Rtatina" (Richter, Trid., p. *o8, 7 Cir. S. C. Cons., "Maxima 

n. 6). cur^," Aug. 30, 1910. 

e Richter, ib., n. 9; B«ned. XIV, 



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74 ECCLESIASTICAL PERSONS 

XIII, " OfUciomm ac munerum" 1897, the clergy are ad- 
monished to submit to the Ordinary any books they may 
write, even on subjects of natural science and art, 
" in order to show an example of prompt obedience," 
and are forbidden to assume the editorship of news- 
papers and magazines without the Ordinary's permis- 
sion. 8 The bishop, therefore, is entitled to demand from 
his clergy obedience in all licit things that pertain to his 
episcopal jurisdiction, in so far as required by the clerical 
state and office. 

c 

scientific equipment of the clergy 

Can. 129 

Clerici studia, praesertim sacra, recepto sacerdotio, 
ne intermittant; et in sacris disciplines solidam illam 
doctrinam a maioribus traditam et communiter ab Ec- 
clesia receptam sectentur, devitantes profanas vocum 
novitates ct falsi nominis scientiam. 



Pan. 130 

§ 1. Ex pie to studiorum curriculo, sacerdotes omnes, 
etsi beneficium parocciale aut canonicale consecuti, 
nisi ab Ordinario loci ob iustam causam fuerint ex- 
crapti, examen singulis annis saltern per integrum tri- 
ennium in diversis sacrarum scientiarum disciplinis, 
antea opportune designatis, subeant secundum modum 
ab eodem Ordinario determinandum. 

§ 2. In collatione ofBciorum et beneficiorum ecclesi- 
asticorum ratio habeatur corum qui, ceteris paribus, in 
memoratis periculis magis praestiterunt. 

Can. 131 
§ 1. In civitatc cpiscopali et in singulis vicariatibus 

• Const, cit., n. as. 



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CANON 131 75 

foraneis saepius in anno, diebus arbitrio Ordinarii loci 
praestituendis, conventus habeamur, quos collationes 
seu conierentias vocant, dc re morali ct liturgica; qui- 
bus addi possunt aliae exercitationes, quas Ordinarius 
opportunas iudicaverit ad scientiam et pietatem cleri- 
corum promovendam. 

§ 2. Si conventus haberi difficile sit, resolutae quaes- 
tiones scriptae mittantur y secundum normas ab Ordi- 
nario statuendas. 

§3. Conventui interesse, aut, deficiente conventu, 
scriptam casuum solutionem mittere debent, nisi a loci 
Ordinario exemptionem antea expresse obtinuerint, 
turn omncs sacerdotes saeculares, turn religiosi licet 
exempti curam animarum habcntes et etiam, si colla- 
tio in eorum domibus non habcatur, alii rcligiosi qui 
facultatem audiendi confessioncs ab Ordinario obtinu- 
erunt. 



The Code, in insisting on knowledge or science in cler- 
ics, simply follows tradition and repeats old canons. 9 
St. Paul's 1(> warning to Timothy is as timely now as 
it was then, because faith is not gnosis, and the Church 
is the keeper of the depositum fidei. That stress is laid 
upon the sacred disciplines or studies, is as natural as to 
require of a physician that he study medicine and its 
allied sciences. 

a 

The examination prescribed in Can. 130 may be ar- 
ranged in such a way that dogmatic and moral theology, 
canon law and Holy Scripture, liturgy and history may 
all be surveyed during the three years' course. That a 
thorough repetition of these sciences is difficult for many 



oCfr. c. i. Dirt. 38: c. a. Dirt. Leo XIII, "Plan* quidtm," May 
49; c. a, Dist. j6; c. 15. X, III, if jo, 1885 (Desclec, 1887, II, 136ft.), 
Fius II, Comrt. of April 4, 1460; 10 I Tim. 6, 20. 



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76 ECCLESIASTICAL PERSONS 

priests employed in parish work or teaching is evident, 
and hence exemptions are provided for according to the 
prudent judgment of the bishop. 

Clerical conferences are to be held (the number "is 
stated only approximately) sacptus in anno, \. e. t about 
two or three times a year. 11 The tnatter for these con- 
ferences is to be taken chiefly, though not exclusively, 
from moral theology and liturgy. These two branches 
are of special importance, in as far as uniformity in the 
confessional and in the administration of the sacraments 
fosters unity of morals and discipline and palpably dem- 
onstrates that unity to the people. If conferences cannot 
be held for any solid, not imaginary, reason, the Code 
assigns a substitute, namely, the written solution of ques- 
tions proposed. The matter for these questions is to be 
taken from the same branches and they are to be an- 
swered as often as conferences would be held. The solu- 
tions are to be sent to the Ordinary or his chancellor, 
and to be examined by the bishop himself or a delegate, 
perhaps one of the usual examiners, or any competent 
judge. After the examination the correct answers should 
be sent to the priests, while the original copy of the an- 
swers submitted may be kept in the archives. 

The last paragraph mentions those who are obliged to 
attend the conferences or to send in solutions. Leo XIII, 
in his Constitution " Rotnanos Pontifices," May 8, 1881, 
had laid down the general law concerning regulars 
actually employed in the care of souls, whilst the S. C. 
EE. et RR. had repeatedly enjoined all regulars who had 
received the faculty of hearing confessions to hold theo- 
logical conferences in their own houses. 13 Hence the 

Code establishes nothing new, except in prescribing writ- 

- 
< 

ll Barbosa, Tractalus Varii, Dist II Cf. Bachofen, Compendium 

362, I. c, p. 786. Juris Rtgularium, 1903, p. 26a. 



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CANON 132 77 

ten solutions. However, these must be sent in by regu- 
lars only in case no conferences are held in their monas- 
teries. All religious, whether exempt or not, if they are 
actually in charge of souls, even though they be prelates, 
are obliged to attend these conferences, unless regular 
conferences are held in their convents. Hence religious 
who are pastors must attend in any case, other religious 
only in case no pastoral conferences are held in their re- 
spective communities. All this goes to show how impor- 
tant these conferences are considered by the legislator, 
and that they should not be set aside by bishops or reli- 
gious. 

Of course, in order to obtain the expected results, the 
conferences should be conducted on the basis of authority 
and in a manner which interests those who are bound to 
take part in them. 



CELIBACY OF THE CLERGY 



Can. 132 

§ x. Clerici in maioribus ordinibus constituti a 
nuptiis arcentur et servandae castitatis obligatione ista 
tenentur, ut contra eandem peccantes sacrilegii quo- 
que rei sint, salvo praescripto can. 214, § 1. 

§ 2. Clerici minores possunt quidem nuptias inire, 
sed, nisi matrimonium fuerit nullum vi aut metu eis- 
dem incusso, ipso hire e statu clericali decidunt. 

§ 3. Coniugatus qui sine dispensatione apostolica 
ordines maiores, licet bona fide, suscepit, ab eorundem 
ordinum exercitio prohibetur. 



Can. 133 
§ 1. Caveant clerici ne mulieres, de quibus sujpicio 



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78 ECCLESIASTICAL PERSONS 

esse possit, apud se retineant, aut quoquo modo fre- 
quentent 

§ 2. Eisdem licet cum illis tantum mulieribus co- 
habitare in quibus naturale foedus nihil mali permittit 
suspicari, quales sunt mater, soror, amita et huiusmodi, 
aut a quibus spec tata morum honestas, cum provectiore 
aetate coniuncta, omnem suspicionem amoveat. 

§ 3. Iudicium an retinere vel frequentare mulieres 7 
etiam illas in quas communiter suspicio non cadit, in 
peculiari aliquo casu scandalo esse possit aut incon- 
tincntiae aflerre periculum, ad Ordinarium loci per- 
tinet, cuius est clericos ab hac rctcntionc vel f requenta- 
tione prohibere. 

§ 4. Contumaces praesumuntur concubinarii. 



Can. 134 

Consuetude vitae communis inter clericos laudanda 
et suadenda est, eaque, ubi viget, quantum fieri potest, 
servanda. 

The last canon, though apparently but loosely con- 
nected with the subject of celibacy, has much to do with 
it, according to the saying of the Preacher : " Woe to 
him that is alone H (Ecc. 4, 10) ; and there is a reason 
why the Code has added it to the canons enforcing the 
law of celibacy. The Church certainly had strong rea- 
sons for establishing the law of continency for the clergy 
and of celibacy for those in major orders. The sublim- 
ity of the sacred ministry and its constant, almost unre- 
lenting occupations, which admit of no family cares and 
troubles, originally inspired her to enact this law, which 
was, besides, a strong safeguard against the danger of 
hereditary succession to office and set up a splendid ex- 
ample for the laity. 



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CANON 134 79 

The Occidental Church has set a more emphatic exam- 
ple in this matter than the Oriental Church. Already 
in the fourth century, Pope Siricius (384-398) obliged 
priests and levites to sobriety and chastity, 1 * and Leo I 
(440-461) extended the prohibition of marriage to the 
subdeacons. 1 * At the time of the struggle between 
Church and State celibacy was attacked, but successfully 
defended by the popes. The Second Lateran Council 
established the nullity of matrimony for the higher clergy, 
and the Council of Trent confirmed its canons. 16 

The Oriental Church was neither uniform nor con- 
sistent in the application of celibacy. Whilst its ancient 
custom tallied with that of the Western Church, the en- 
actments of the Trullan Synod (692) admitted a laxer 
practice, which finally prevailed. 10 Even to-day the sub- 
deacons of the Oriental rites are allowed to marry before 
they receive that order and to cohabit with their wives. 
However, if we may believe a modern exponent of the 
Oriental law, a marriage contracted by a cleric after 
receiving subdeaconship would be invalid, 17 though as far 
as we are aware, the Catholic Church has never pro- 
nounced a sentence on these marriages 18 However, 
priests of the Oriental rites who wish to be employed as 
such in the U. S. must conform to the Latin custom. 1 * 

(1) In the Occidental Church, therefore, every at- 
tempted marriage by a cleric who has validly received 
subdeaconship or any higher order, unless he be con- 
strained by violence or fear, is null and void, not by rea- 



ls Cfr. Ep. ad Himerium, n. 10 rtcht dtr Abendland. Kirch*, 1905, 
(Constant, /. c, p. 630). p. 367, p. 598. 



14 Cfr. c. 1. Diit. 3J. IT Maasch-Peuie, I e. 

16 Cfr. c. 40, C. 27. 1- '; c. 13, X, is Cf. Bened. XIV, " Elsi pastor- 
Ill, 1; c. 4. X, III, 3; c. 7, X, I, atis," May a6, 174a; " Eo qutmvis," 
an c. un. 6°, III, 15; Cone. Trid. t May 4, 1745 (Bui!., Mcchl., t. I, 
Seas. 24, c. 9, De Ref. 361 ff; III, 14s ff.). 

lflCfr. Milasch Pcisic. Kircken- 19 S. C. P. F. May 10, 189a; Ma? 



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80 ECCLESIASTICAL PERSONS 

St 

son of a supposed vow, but in virtue of positive ecclesias- 
tical law. 20 In virtue of the obligation of perfect chas- 
tity, every morally imputable act, whether internal or 
external, directed against that obligation, involves a pro- 
fanation of a sacred person and is, therefore, sacrile- 
gious. 

(2) Every valid marriage contracted by one in minor 
orders reduces the latter ipso iure to the lay state, thereby 
depriving him of all clerical rights and privileges and 
absolving him from clerical duties." The Code says, 
" unless the marriage is null and void by reason of vio- 
lence or fear.' This, however, must not be presumed, 
but proved. Hence, though one affected by that impedi- 
ment may be thoroughly persuaded of the invalidity of 
a marriage thus contracted, he could not continue to con- 
duct himself as a cleric, but would have to await the 
final sentence of the ecclesiastical court. 

(3) A married man, in order to receive higher orders 
licitly, now needs an Apostolic dispensation. If no dis- 
pensation was obtained, such a one, if ordained, is ipso 
iure debarred from the exercise of the order received. 
Here the Code is somewhat stricter than the old law, 
which permitted a married man to receive higher orders 
if his wife consented and the bishop sanctioned the vow 
of chastity to be pronounced by the wife." Although the 
married state is not, properly speaking, an irregularity, 
it is an impediment to holy orders," dispensation from 
which is reserved to the Apostolic See, and therefore the 



'• 1807 {Am. Eccl. Rev., 7, 66; 18, ligioui order if the husband 

67). made a bishop; this requisite was 

toS. Th„ TI-II, q. 88, a. 11; extended to all wives whose age 

Heiner, K.-R., I, 233; cfr. can. 114, might cause misgiving, and only 

I I. after the age of fifty tbe suspicion 
21 Cc. j~3, X, III, 3. seemed removed. 

« Cf. c s. X, III, 33; c. 6, h. t. 28 Can. 087. » # . 

III, 3a required profession in a re- 



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CANON 134 81 

■ 

married and ordained man remains suspended until the 
Holy See has provided; otherwise he would become ir- 
regular ex capite delicti. 24 

The next canon logically determines the cohabitation 
of clergymen with women. St. Paul mentions the fact 
that the Apostles kept a woman, a " sister,' 1 about them.* 5 
These women were probably virgins who led a life of 
celibacy and administered unto the temporal needs of the 
clergy. They were called " znrgines subintroductae" and 
are mentioned in the epistle of the bishops against Paul 
of Samosata as women of suspicious character. There- 
fore it is not surprising that the Council of Nicaea (325) 
thought it necessary to regulate the relation of clerics to 
their female relatives. Besides those mentioned in § 2 : 
mother, sister, aunt" (on either side), the Nicene canon 
also admits other women of good character. This was 
extended to the second degree of consanguinity and af- 
finity, not by any written law, but by the canonists and 
doctors." Our Code admits any woman whose moral 
character and age ward off suspicion. Concerning age 
the law does not determine a limit. For what is gener- 
rally known as the "canonical age," no canon can be 
quoted. However, since twenty-four is called aetas su- 
peradulta, this might be taken as indicating the canonical 
age. Concerning female relatives no age is stated. 

The next paragraph reserves the judgment concerning 
permission to retain or visit women entirely to the 
bishop, who, although he cannot forbid clergymen to have 
women housekeepers, 28 has a right to know who these 



p 



". 



24 Can. 985, 7°. «Cf. t. Schcrer I, 37*i Wernt, 

25 CI. I Cor. 9. s: X. III. 2, Dt IT. p. 298 0- ed.); the Code allows 
cohab. cleric, tt mul. priests to have a female house- 

M Euseb., Hist. Eccl., VII, 30; keeper, but does not determine the 

e. 3, c 16, Dist. 32. canonical age. 
2T Bened. XIV, inf., 83, o. 6 f 



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82 ECCLESIASTICAL PERSONS 

women are and what is their reputation. Gerics must 
obey the Ordinary if he should forbid them to keep or visit 
a certain person. One who stubbornly refuses to obey 
his bishop is presumed to be a concubinarian. Strictly 
speaking, one is contutnax only if he refuses to appear 
before the judge who summons him. Therefore one 
must be properly summoned and have received the sum- 
mons before he can be declared contumacious. And even 

c 

if he should be declared contutnax, the presumption is a 
simple one, not iuris et de iure.** But this belongs to 
legal procedure. 

The last of the three canons recommends community 
life to priests, doubtless as a preservative of clerical con- 
tinency. What has been said concerning the chapter on 
canons may suffice to prove the intention of the Church. 
Be it also mentioned that pastors and assistants should 
live in the same house. 80 



divine office ( breviary) 

Can. 13 

Clerici, in maioribus ordinibus constituti, exceptis iis 
de quibus in can. 213, 214, tenentur obligatione quotidie 
horas canonicas integre recitandi secundum proprios 
et probatos liturgicos libros. 
--1 

The clergy are the mediators between God and men, 
and the office of mediator involves the duty of praying 
according to the example of the Apostles. 81 Prayers in 
common were cultivated especially by the monastic insti- 
tutes, but also in churches by the clergy assigned to them. 
Justinian expressly inculcated that duty in his Code." 

» Cf. cc. 184a ff; 18*5 ff; 21761!. 81 Cf. Acta «, 13; 3, 1; 10, 9. 

SO Cf. c. 476. 5 5. S3 L. 4a. 6 10, Cod. I, 3. 



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CANON 135 83 

The chapters of canons established in the eighth century 
practised public prayers, mostly according to the Rule of 
St. Benedict, in their churches. The Decretals urge the 
same duty upon the priests of cathedral, collegiate, and 
regular churches. 33 These texts prove the obligation of 
choir service, but are silent about the recital of prayers. 
The Council of Basle (1431-49) enacted that duty, but 
it did not establish a universal law. 84 Benedict XIV de- 
duces the obligation of the private recitation of the divine 
office, incumbent upon all clergymen in higher orders, 
from " ancient tradition and immemorial custom," rather 
than from any written text, and adds that the Oriental 
Church has no law to that effect. 80 

The name Breviary occurs since the time of Gregory 
VII (1073-1085). The Roman Breviary contains the 
rules according to which it must be recited. It must be 
used by all clerics except those who have a special privi- 
lege for using a different book or a practice of at least 
200 years previous to Pius V's Constitution " Quod a 
nobis" (July 9, 1568). Pius X by his Const. "Divino 
afftatu" (Nov. 1, 1911) rearranged the Psalter according 
to the early and traditional idea of its weekly recitation. 

The obligation of reciting the Breviary privately has 
now become a universal written law, binding every cleric 
from subdeacons onward, except those who have been 
reduced to the lay state or are freed on account of having 
been ordained by force. A dispensation may be granted 
by the Holy See, and for a time and in particular cases 
also by the Ordinary. 



■8 Cf . cc 1, 9, X, III, 41; c. 1, B&umer, Ceschichte des Brnntrs, 

Clem. Ill, 14. 1895. 

■4 Sets. 21, c. 5; cfr. v. Scherer aft" Eo quamtis," May 4, 1745, 

I, 386; Wcrw, II, 373 (1. ed.); (Biiii., Mcchl., i8a6, III, 147, | 43 ). 
Coth. Eneycl., %. v. "Breviary"; 



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»*rx iiuca prae&cripta, 4c£c3*nt, tvns*— -zr: w - :.arryi-T. 
•..•• ■.«..*■/* ':; rf^r. x , ; , .'V.™ =ktci tine: ierxEt 
getAWt, ** capLUgrtec vaaap-'i'jez. c^ru-r «,"~"*gTt, 

$ su Amsak> at HMrfur ; sacs id ipns a aare ast apo- 
tfco&e p*iri*^*v ait cmccarau. 

$ 9, Ckr*c* sainore* qai propria fin r re cne kgi- 
tMM CM— Jutitatm trrlf i — l ir urn ct l a—— caaate- 
rictf, *ec# ab Ord&ario sneeri. sese ir.tr* -e -serr . clo- 
4*v*fmt 9 ipto iure € «tata clerical < iwalmd . 

A dUiinci <Urkol 'ftrb, uvtd by tie ciergy odsxSe of 
iim touyMztrj, va» h&r*A"XKA £*sA the sixxh ceatcry. 
It originkly oontUted of the old Roman dress: a tznjc and 
a loof white under garment with or whhoat sJeeves. In 
tJMrvK of tin* irony councils and synods passed enact- 
nt+nu on the tttf/ject, the &*t being the Tridentine Coun- 
cil, which darted that the clergy should wear a dress 
proffer to their ttatc, in order to show by the decency of 
tbdr outward habit the probity of their interior con- 
duct.** Sixtui V styled that dress vestis talaris or cas- 
•ock. w The Third Ilenary Council of Baltimore enacted 
into positive law what may be called the legitimate cus- 
tom of this country, the wearing in public or on the street 
of a coat of black or sombre color, reaching to the knees, 
with a Roman collar. Religious, too, are expected to 
conform to this custom." The tonsure is not prescribed 

n 

MCfo e. 15. X, III, 1; c. *, '5*». I a; cfr. Bcucd. XIV, "Ad 

Cl*m. Ill, 1; Cone. Trid., Kr*. 14, militant ii," March 30. 174*. M- 

a 6, Dt R$f. *» Acta »t Dtcrtto, a. 77. 

•T " Cum tarroianctam," Jta. Q, 



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CANON 137 85 

in our country. Concerning the hair, the old canons, in 
warning against unbecoming vanity, used the phrase 
" comam ne [clerici] nutriant." " The new Code is silent 
as to beards and wigs, and hence this matter is left to 
the prudent judgment of the Ordinary or to a council *° 

Rings, cither with or without gems, are permitted only 
to those whom the law or an Apostolic privilege has en- 
dowed with the right of wearing them. Hence only car- 
dinals, bishops, and blessed abbots are allowed to wear 
them at Holy Mass, 41 while prothonotaries non partici- 
pantes, doctors, and abbates non benedicti are not allowed 
to wear them at Mass. 42 

The last paragraph deals with those in minor orders 
who doff the clerical dress and tonsure and refuse to 
obey the injunction of the bishop to reassume them 
within a month. This is a modified repetition of the 
decretal of Pius IX, published a. d. i860. 



OCCUPATIONS AND AMUSEMENTS FORBIDDEN TO THE 



CLERGY 

Can. 137 

A fideiubendo, etiam de bonis propriis, clericus pro- 
hibetur, inconsulto loci Ordinario. 

The ancient civil law as well as the Decretals forbade 
the clergy to give bail, 48 but made some exceptions in 
favor of fellow-clerics and their own churches, as well as 

aoCfr. c. 22, Dist. 33; c 7. X. 42 S. R. C. Feb. 13. 16*5 (Bar- 
Ill, 1. bota, Apost. Die. p. 26); Pius X, 

40 Formerly the wearing of a wif "Inter multiplices," Feb. 37, 1905, 
required an Apostolic indult; cfr. n. 4, 27, 28, 31, 47-49. 

Richter, Triti., p. 184, n. ia; Bened. 48 Nov. 133, e. 6; c. 1, X, III, 22; 

XIV, Df Syn. Diotc, XI, 9. Engel, III, 22 t n. 4. 

41 Cf. c Bltj |a. 



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86 ECCLESIASTICAL PERSONS 

for their own property and person. The Code doubt- 
less must be given a stricter interpretation because of 
the»general terms in which it forbids the practice. Hence 
every kind of bail, " whereby a man obliges himself, 
his heirs, executors and administrators, to pay a certain 
sum of money to another on an appointed day," " is for- 
bidden except with the permission of the bishop. This 
condition must also be observed if a clergyman would 
give bail on his personal, patrimonial or parsimonial prop- 
erty. This ruling may seem harsh, but cases brought 
before die Roman Curia prompted a severer course in 
order to protect the clerical state from slanders and in- 
sinuations which are never so rife as when a clergyman 
makes mistakes in money matters. This and the follow- 
ing canons are all inspired by the hvofold purpose of 
safeguarding the decorum of the clerical state and preserv- 
ing its members from troublesome distraction which might 
impede their fruitful activity in the sacred ministry. 
Hence: 



Can. 138 

Clerici ab iis omnibus quae statum suum dedecent, 
prorsus abstineant ; indecoras artes ne exerceant ; alea- 
toriis ludis, pecunia exposita, ne vacent; arma ne 
gestent, nisi quando iusta timendi causa subsit; vena- 
tioni ne indulgeant, clamorosam autem nunquam ex- 
erceant; tabernas aliaque similia loca sine necessitate 
aut alia iusta causa ab Ordinario loci probata ne in- 
grediantur. 



Of 

The principle previously stated is here announced in set 
terms, whereupon five occupations are specified which 
are more or less unbecoming to the clerical state. These 

4* Blackstone-Cooley, /. c, II, 340. 



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CANON 138 87 

occupations comprise all professions or arts which, in 
the common estimation of the people, are exercised only 
by a low class of men or involve a degradation of the cler- 
ical state. Such are especially the profession of actors 
and the trade of saloon or innkeepers, butchers and exe- 
cutioners. 45 Games of hazard, if connected with staking 
of money, are prohibited. But moderate card playing, 
chess, billiard or tenpins is not forbidden if no scandal — 
of course pharisaical scandal cannot always be avoided — 
is given and no excess in time or money involved." 

The carrying of arms, tire arms as well as others, is for- 
bidden also in the Decretals. 47 But we remember that, 
about ten years ago, when there was a morbid agitation 
against the clergy in Italy, and especially in Rome, many 
priests received license from the Pretor to carry a re- 
volver. This was purely a means of self-defence; hence 
the very reasonable clause in the new Code. 

Hunting and the chase are distinguished; the former 
is not entirely forbidden, but should not be indulged in. 
Indulgere implies frequent repetition. Hence, occasional 
hunting without dogs, or only one dog, and without a 
great apparatus, may be permitted if no dangerous con- 
sequences are to be feared. But the chase, i. $., clamor- 
ous hunting with dogs, hawks, and falcons for the pur- 
suit of large game, bears, deer, foxes, etc., is forbidden. 48 

Saloons and similar places must be avoided by clerics. 48 
On that point we believe that in our country the neces- 
sary precautions are not wanting. Neither are the sa- 
loons, at least many of them, in the U. S., places where 



4tCfr. cc. 1-3. D'at- 34! c. 1, 49 Cf r. X, V, 24. De clerico v«n*i- 

Diat. 35: c. 1. X, III, so: c. 1, tott. 

Clem. Ill, 1. 4BCfr. c. 2, Dirt. 44; c. 15. X, 

46 C. 1, X, III, 50; Cone, Bait III, 1; Cone. Trid., Scaa 04, c la. 

J/, n. 754- *>« R*f- 

*t C. a. X, in, i. 



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88 ECCLESIASTICAL PERSONS 

clergymen should be found for purposes of amusement. 
The bishop might proceed against a clergyman who would 
not heed the prohibition of frequenting saloons after a 
paternal and peremptory admonition. 50 But on the other 
hand it is not commendable to decree suspensio ipso facto 
incurrenda for transgressors of this rule, because that 
penalty should be meted out only in grievous cases, lest it 
lose its effectiveness. A canon of the IVth Lateran 
Council forbids drinking bouts and drinking at com- 
mand f M a practice which resembles our so-called " treat- 
ing*" — a fertile source of drunkenness. 



Can. 139 

§ i. Ea etiam quae, licet non indecora, a clerical! 
tamen statu aliena sunt, vitent. 

§ 2. Sine apostolico indultu medicinam vel chirur- 
giam nc excrceant; tabelliones scu publicos notarios, 
nisi in Curia ecclesiastica, ne agant; ofiicia publica, 
quae exercitium laicalis iurisdictionis vel administra- 
tionis secumferunt, ne assumant. 

§ 3. Sine licentia sui Ordinarii ne ineant gestiones 
bonorum ad laicos pcrtinentium aut officia saccularia 
quae secumferunt onus reddendarum rationum; pro- 
curatoris aut advocati munus ne exerceant, nisi in 
tribunali ecclesiastico, aut in civili quando agitur de 
causa propria aut suae ecclesiae ; in laicali iudicio cri- 
minali, gravem personalem poenam prosequente, nul- 
lam partem habeant, ne testimonium quidem sine 
necessitate ferentes. 

§ 4. Senatorum aut oratorum legibus ferendis, quos 

■ 

50 Aicfcner, /, c, f yj, a. might be permitted in honor of 

Si C 14. X. III. 1 to which Val* prince or country, if drunkenness 

lensis (Paratitla, III, i, n, 7) re- is avoided. 

marks that some aequales Kaustus 



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CANON 139 89 

deputatos vocant, munus nc sollicitent neve acceptent 
sine liccntia Sanctae Sedis in locis ubi pontificia pro 
hibitio intercesserit; idem ne attentent aliis in locis 
sine licentia turn sui Ordinarii, turn Ordinarii loci in 
quo electio facienda est. 

The principle stated in the first paragraph is based on 
St. Paul's exhortation to Timothy: "No man, being a 
soldier to God, entangleth himself with secular busi- 
ness/' " Secular business affairs are apt to distract a 
priest from the one necessary occupation, the sacred min- 
istry. Hence the prohibition of offices which, in them- 
selves, are not incompatible with the dignity of the cler- 
ical state — who would venture to say, e.g., that a scna- 
torship is degrading? — yet, because of their unwhole- 
some effect upon the priestly office, should be accepted 
only in obedience to the Church. 

The professions or occupations forbidden to clerics in 
can. 139 as ° foreign to the clerical state " may be divided 
into two classes : such as require an Apostolic indult and 
such as merely demand the consent of the Ordinary. 

An Apostolic indult is required for the practice 
of medicine, and the Code makes no distinction be- 
tween medicine and surgery as to the strict necessity of 
obtaining the papal permission. Hence no matter 
whether a cleric wishes to practice simple medicine or sur- 
gery (formerly called medicine "cum adustione et in- 
cisione " 5a ) he needs an Apostolic indult. There can be 
no doubt that the so-called Kneipp doctors and other 
u naturopaths " fall under this prohibition, B * because the 
law is aimed at the exercise of the medical profession as 
such and intended to safeguard the honor of real physi- 

BJ II Tiro, a, 4. 5« Cfr. Acta Deereta Cone. 

MCfr. c. 19. X, V, ia t on ac- Bolt. Ill, n. 82; Bcned. XIV, Dt 
count of the danger of irregularity. Syn. Dioec, XIII, c, 10. 



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90 ECCLESIASTICAL PERSONS 

cians against usurpers and bunglers. At the same time 
it must be observed that exercere implies a habitual exer- 
cise ; hence giving a dose of quinine or other drug occa- 
sionally would not be exercising the medical profession. 

The question may arise, Whom does the law require to 
ask for an Apostolic indult? The answer is: all who 
partake of the clerical state ; hence also lay brothers and 
sisters, unless they merely act as assistants to physicians 
in giving medicine or at an operation. If they practice 
medicine of their own accord and on their own responsi- 
bility, they need an Apostolic indult." 

What about oblotes of religious communities? These, 
though partaking in spiritual favors, are not religious, 
and hence no clerics in the proper sense, supposing, of 
course, that they have not received either tonsure or or- 
ders. Therefore they may exercise medicine or surgery 
without an indult. 

Another profession which clerics may not adopt with- 
out Apostolic permission is that of notaries public. It 
was forbidden " to the clergy in higher orders by Inno- 
cent III, and this prohibition is now extended to all 
clerics, and consequently also to religious. The Code 
does not except those who act as notaries in favor of 
their own churches or monasteries if cases are taken to 
the civil court. 57 Only in ecclesiastical courts are clerics 
allowed to act as notaries public. 

A third prohibition refers to public offices which in- 
volve civil jurisdiction or administration, e. g. t those of 
judges and administrative functionaries, mayors, govern- 
ors, etc. 68 This law includes senators and deputies in 



DQ tfr. Iiacfaofen, Compendium canonists admit an exception. 

Juris Reg-, p. 130 f. gs Cfr. c. 4. X, III, 50: **M*W- 

a« C. 8, X, II!, so. arius prmcipis . . . iurisdictiones 

67 Engel (III, 50, n. 5) and other jocculares.' 



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CANON 139 t>x 

Italy, where Catholics are expressly forbidden by the 
Holy See to solicit or accept such offices. 

All these occupations, then, in order to be licitly as- 
sumed by a cleric, require an Apostolic indult. The fact 
that the clause " sine apostolico indultu " is placed at the 
head of § 2 proves that the legislator wishes to include 
all the offices that follow. 

§ 3 enumerates the offices for the exercise of which 
on the part of a cleric the permission of the Ordinary is 
required. Note that the text says " sui," not " loci Or- 
dinarii" The Ordinary of exempt religious is their 
superior, not the bishop of the diocese. 

(1) Clerics may not be managers of business affairs 
or of properties which belong to laymen or necessitate the 
rendering of an account to civil authorities. To this 
class of affairs belongs the guardianship of orphans and 
widows, 69 which a cleric cannot undertake without the 
permission of his bishop or superior. Forbidden to cler- 
ics on the same score are the offices of president, di- 
rector, treasurer, secretary of banks, even though these 
be of a charitable or social type (rural or farmers' 
banks, etc.). 00 

(2) A cleric is not allowed, furthermore, to act as 
procurator or by proxy in another's name by special 
mandate, or as attorney, unless for himself or in defence 
of his church. 81 We may safely extend " propria causa " 
to his next relatives, who because of blood relationship 
may be considered as one person with him. w 

(3) In criminal cases which imply either capital pun- 
ishment or confinement in a penitentiary — which pun- 
ishment generally entails infamy — a cleric is not allowed 



B9 Cfr. c. 2, X, IIT, 50. «i C. a, X, III, 50; S. C. C, Aug. 

00 S. C Consist., Nov. 16, 1910 4, 1883, Nuttins Ciuniac. 
{A. Ap. S., II, 910). M Aichncr, | 7 Z- 



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92 ECCLESIASTICAL PERSONS 

to act as a witness, unless called by legitimate authority 
(the prosecuting attorney or judge), which would be a 
case of necessity. But even in such cases it is commend- 
able to ask the Ordinary's permission if time permits. 

(4) The last case which requires the permission of the 
Ordinary is the solicitation and acceptance of the offices 
of senators and defntties. There is not much danger in 
our country that clergymen will be elected to Congress; 
but if one wished to become a candidate, he would need 
the permission of his own Ordinary as well as that of the 
Ordinary of the district — if this were located in a dif- 
ferent diocese — for which he sought to be elected. 

amusements 

Can. 140 

Spectaculis, choreis ct pompis quae eos dedecent, 
vel quibus clericos interesse scandalo sit,, praesertim 
in publicis theatris, ne intersint. 



Unbecoming to the clergy are all shows which offend 
against the divine or the natural law, or detract from the 
honor and respect due to the Church and her ministers." 

The term spectacula comprises all kinds of mimic rep- 
resentations, either masked or not, by professional actors, 
likewise gladiatorial contests, bullfights and prize-fights. 
Concerning this last-named kind one might be tempted to 
condemn them as immoral, yet it would be impossible 
to prove their immorality from the viewpoint of natural 
law. Hence we are not ready to pronounce them simply 
unbecoming. 84 Of course a bishop might forbid his 
-J , 

* 68 Cfr. Bcned. XIV, Da Syn. which no one is allowed to expose; 

Dioec, XI, 10, ii f.; In:!.. 37; 76. however, properly conducted prixe- 

0* The point of immorality would fights does not necessarily involve 

only arise from the danger to life, risk of life, as statistics show. 



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CANjON 140 93 

clergy to attend prize-fights if he were persuaded that the 
majority of his flock strongly opposed them. 

Choreae are balls and dances. The well-known decree 
of March 31, 1916, is pertinent to the subject; but the 
Code uses more general terms, although we would not 
assert that said decree is now ineffective. 85 That clergy- 
men would take an active part in dances or arrange such, 
although it may have happened in bygone days, 86 is, we 
believe, no longer to be feared. 

Pompae are festivities celebrated with much ado and 
display, with eating, drinking, and musical programmes; 
for instance, at weddings or other occasions of a purely 
worldly character. 87 If such affairs take place in public 
theatres, 88 the clergy have an added reason for keeping 
away. Theatres are now often turned into moving- 
picture shows, many of which are of a low type, injurious 
to eyes and nerves and destructive of moral and physical 
health. Of course theatrical representations by school- 
children, college students, or members of a parish are 
not affected by the Code. But the holy seasons of 
Advent and Lent and the ember days should be respected 
by the latter class. 

Can. 141 
§ 1. Saecularem militiam ne capessant voluntarii, 

68 Cf. A. Ap. S., VIII, 147 *• take neither the initiative nor a 

Card. Gasparri in his notes also re- passive part, are sot forbidden, even 

fere to that decree (p. 35, n. a). if given for a charitable or re* 

The dispositive part of said decree ligious purpose by lay people. This 

reads: "All clergymen, secular as is the tenor of the text, and noth- 

well as regular, are strictly for- nig more. 

bidden to promote or favor dances 00 Cfr. Bened. XIV, Dg Syn. 

or balls, even if these should be Dioec, XI, 10, 14. 

held to help and support a good 07 Cfr. cc. 14, 15, X, III, Ij c. 3, 

and pious cause or for any other Dist. 23. 

purpose; besides all the clergy are 08 Cfr. c. 12, X, III, 1 (theatres 

prohibited to attend such dances if in churches); Cone. Trid., Sess. aa, 

arranged by laymen." But dances c. 1 Da Rtf. 
in geneial, in which the clergy 



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94 ECCLESIASTICAL PERSONS 

nisi cum sui Ordinarii licentia, ut citius liberi evadant, 

a 

id f ccerint ; neve intestinis bel lis et ordinis publici per - 
turbationibus opem quoquo modo ferant. 

§ 2. Clericus minor qui contra praescriptum § i 
spontc sua militiae nomen dederit, ipso iure e statu 
clericali decidit. 



The first clause of the first paragraph and the second 
paragraph treat the same subject, vis.: volunteering for 
military service, which now-a-days is mostly done by 
enlisting in the army or navy. Some countries permit 
clerical students to escape further service by volunteering 
for one year. If a cleric in minor or major orders 
should wish to choose this course, he must first obtain the 
permission of his Ordinary. A cleric in minor orders 
who voluntarily enlists against the prescription of § i F 
forfeits the clerical state. 09 

To participate in internal troubles (revolutions, etc.) 
is strictly forbidden to the clergy. Leo XIII advised the 
Spanish clergy not to allow themselves to be wholly ab- 
sorbed by party spirit lest they might seem to care more 
for human than for heavenly things. 70 As to political 
activity in the U. S., which a clergyman might be called 
upon to take up, a time may come when the freedom of 
our schools will require the clergy to exert political in- 
fluence. The social question, too, is becoming a " burn- 
ing " problem in public life. In any combat for principles 
the direction of political action will rest, first and above 
all, with the hierarchy. Uniform procedure, firm and un- 

fl9 Can. 188, 6,— Dtcidtri a performed privately, is no longer 
statu clerical*, it seems to us. in- sufficient, 
volvca a radical and absolute loas TO" Cum mult*/' Dec. 8, j88j; 



of that state, wherefore the reai- " Pottqvam eatkolici," Dec. to, 

suming of the clerical garb, which 1894; S. C. P. l-\. Instr. of Nov. 23, 

formerly (cfr. Bened. XIV, Lc 1845, n. 7; S. C C, Jul 12, 1900. 
Syn. Diotsc, XII, 3, 1) could be 



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flinching, will lend great strength to the cause of the 
Church. But moderation and loyalty must always be 
combined with firmness, and the clergy will usually be 
safe if they follow the guidance of the hierarchy. 

In purely political issues arising between parties the 
clergy are free, and the bishop cannot compel them to 
follow his opinion, much less forbid them to vote. 
For the right of voting is, radically at least, an inborn 
right, inherent in a citizen by the fact of his belonging 
to the State. And the State we hold to be of natural or 
divine origin. Hence the clergy, remaining citizens 
though clerics, cannot be deprived of that natural right 
by any authority, except by way of penalty. 

However, we would-not deny ecclesiastical authorities 
the right to forbid the clergy to vote in some particular 
case which involves great disturbance to state or dio- 
cese. 71 But this only by way of exception. And what 
we have said concerning the clergy in general, must fully 
be applied to religious, for that mystic mors cvvilis has 
now ceased in most countries. 



p 



negotiatio prohibita 

Can. 142 

Prohibentur clerici per se vcl per alios negotiationem 

aut mercaturam exercere sive in propriam sive in 
aliorum utilitatem. 

This is the negotiatio prohibita, the forbidden commer- 
cial trading, which was proscribed by many synodal acts. 
That in the beginning of the Church the " Apostolic 

71 Leo XIII, " Cum multa "; account of political activity, neglect 

Heincr, /. c, I, 229, justly remark! their clerical duties or transgreaa 

that the bishops are empowered to the bounds of Christian charity and 

see to it that the clergy do not, on truthfulness. 



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St 

laborers " were such not only in the spiritual but also in 
the material sense, like St. Paul the tentmaker, was but 
natural. Later on, some clerics supported themselves on 
their patrimony, whereas others had to work for a living 
either in the fields, or at a trade, or in some other way. 
In the third century some bishops devoted so much time 
to their worldly affairs that complaints were heard, and 
the Council of Elvira (ca. 300) issued a special decree 
(can. 19) on the subject. 72 The Christian emperors for- 
bade the clergy to engage in trading throughout the 
Roman empire. 75 Diocesan synods and provincial coun- 
cils prohibited clerical participation in agricultural trades 
and businesses of a purely commercial character. 7 * Nev- 
ertheless, says Benedict XIV, some clergymen are moved 
by such insane avarice that, not in their own name, but 
under the cloak of an assumed name — "sub alieni no- 
minis velamine " — setting aside all fear of God, they en- 
gage in forbidden occupations. 75 Hence the Church has 
never ceased to admonish clerics to hold aloof from 
business and trading. 

What, precisely, is meant by negotiatio and mercaturaT 
These terms are generally understood to mean habitual 
buying and selling for the sake of gain — " turpis lucri 
gratia." Hence, according to the teaching of canonists, 
a cleric is not forbidden to sell stock or produce grown 
on his own farm. He may even buy cattle (feeders), 
fatten and sell them or their offspring in the market. 
But to purchase or rent land in order to raise wheat or 
corn for the sole purpose of selling it would be negotiatio 



TaFunk. Manual of Church His- X, III, 1; c. 6, X, III, 50; Cone. 

tory, 1913, I, 51. Trid., Sess. 22, c. 1, De Ref. 

T» Cfr. II- incr . /. c, I, aaj. 16 " Apoitolieat Sertilulij," Feb. 

T*Cfr. cc flff., Dist. 88: c 16, as. I74N |i (Butt., Prati, L 38). 



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illicitae Now-a-days it is not forbidden for a cleric 
to lend money at the usual rate of interest 

An important part of our commercial life is taken by 
stock companies, which offer shares, stocks and bonds in 
every shape and form, as the advertisements prove ad 
nauseam. Some of these companies are solidly estab- 
lished and in a flourishing condition. Is a clergyman 
allowed to buy their stocks? We see no wrong in this, if 
the shares are bought with the sole object of getting the 
dividends. 71 But to buy for the sake of speculation is 
forbidden. It is also forbidden for a cleric to be a 
director of such a company, because this would entail a 
worldly and perhaps distracting occupation, not to speak 
of the financial risk. Gambling is most detestable in a 
clergyman, and one who has grown rich by such illicit 
means should be avoided by his fellows. 78 

The Code appears very strict, to judge from the word- 
ing, " sive in propriam sive in aliorum utilitatem." How- 
ever, we believe our interpretation is borne out by the 
common teaching of canonists. For the words " negotia- 
te and mercQtura" must be taken in their proper sense, 
and what the authors allow does not fall under trading 
or business, strictly interpreted. However, there can be 
no doubt that clerics are forbidden to trade or transact 
business in the proper sense by giving their money to 
others that these may traffic with it for the advantage of 
the real owner. 



7a Barbosa, Tractatus Varii, Ap- ft**., 1890, p. 148 f ; Buve>, Le Com- 

pell. 16* (p. 262). Of course a merer, les Operations de Bourse el 

cleric ia not allowed to sell wine. le Clerg£, in the Revue Canonique, 

oil, or other products at retail. Feb., 1899. 

Heiner, U e. T8 Bened. KIV, " Apost. Seivi- 

TT SanKuineti, Juris EecU Insti- tutu," I. c. 



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!>8 ECCLESIASTICAL PERSONS 

absence from the diocese 

Can. 143 

Clerici, licet beneficium aut officiurn resiclentiale non 
habeant, a sua tamen dioecesi per notabLIe tempus sine 
licentia saltern praesumpta Ordinarii proprii ne dis- 
cedant. 

Can. 144 

Qui cum licentia sui Ordinarii in aliam dioccesim 

transient, suae dioecesi manens incardinatus, revocari 
potest, iusta de causa et naturali aequitate servata; 
et etiam Ordinarius alienae dioecesis potest ex iusta 
causa eidem denegare licentiam ulterioris commora- 
tionis in proprio territorio, nisi beneficium eidem con- 
tulerit. 

In point of residence, as we shall see further on, the 
law deals separately with different ranks of the clergy. 
Canon 143 merely states the fact that the duty of resi- 
dence is connected with certain offices or benefices, and 
that every secular cleric belongs to a determined dio- 
cese by incardination. Being ordained for that diocese, 
he is supposed to have some kind of work assigned to 
him or at least to be at the disposition of the Ordinary 
under whose jurisdiction he lives. A protracted absence 
from the diocese would, as it were, withdraw him from 
that jurisdiction, and hence an Ordinary is entitled to 
know his clerics' whereabouts. 

What "notabile tempus" means may be inferred from 
a comparison of clerical residence with quasi-domicile. 
A quasi-domicile, as we have seen, is constituted by a 
stay of about six or seven months in one place. A 
" considerable time " for the absence of a cleric from 



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CANON 144 99 

his diocese would, therefore, be less than six months. 
On the whole, this term is very elastic according to the 
comparison implied therein. But we believe four or five 
months would be a u considerable time." 

A presumed or probable permission is had when the 
Ordinary knows of a clergyman's absence and does not 
recall him, for then the latter may legitimately assume 
that the bishop is willing to prolong his furlough. As 
long as a cleric remains within the limits of his diocese, 
he needs no permission. 

Canon 144, the last of Title III, deals with the recall 
of clerics to their own diocese. For such a recall there 
must be a just reason, and natural equity must be ob- 
served (naturali aequitate servata). Equity here can 
mean nothing else but justice or fairness in determining 
conflicting claims. The bishop of the diocese whence the 
clergyman is to be recalled, might wish to retain him 
because of his usefulness, and hence a conflict might 
arise between the two bishops, which must be settled by 
compensation or mutual agreement. 

An Ordinary may, if there be a just reason, order an 
outside cleric to leave his diocese, unless, indeed, he 

has conferred an ecclesiastical benefice on him, which 

■ 

would be tantamount to incardination.™ 

m 
9 

TOCfr. can. 114. 



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TITLE IV 

T 

ECCLESIASTICAL OFFICES 

After a cleric has been incardinated in a diocese and 
endowed with clerical rights and duties, he may and 
should be given an ecclesiastical office. For the clerical 
state is not merely a speculative state, as it were, of idle 
onlookers, but one with determined functions, which 
vary according to the various hierarchical degrees, but all 
tend to the realization of the end for which the Church 
was founded The Church, therefore, is entitled to pre- 
scribe the manner in which clerics are to be appointed to 
the offices established, either divinely or humanly, within 
her pale. 

Hence the first chapter of Title IV treats of the nature 
and provision of ecclesiastical offices. 

Can. 145 

§ 1. Officium ecclesiasticum lato sensu est quodlibet 
munus quod in spiritualem finem legitime exercetur; 
stricto autem sensu est munus ordinatione sive divina 
sive ecclesiastica stabilitcr constituturn, ad normara 
sacrorum canonum conferendum, aliquam saltern se- 
cumf erens participationem ecclesiasticae potestatis sive 
ordinis sive iurisdictionis. 

§ 2. In hire officium ecclesiasticum accipitur stricto 
sensu, nisi aliud ex contextu sermonis appareat. 

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CANON 146 101 

Can. 146 

De beneiicialibus officiis in specie, praeter canones 
qui sequuntur, custodiantur insuper praescripta can. 
1409 seqq. 



What canon 145 says of an ecclesiastical office in the 
wider sense, may be illustrated by a consideration of 
certain offices which are no longer exclusively clerical, 
v.g., those of fossores, hermeneutae, cantores, and 
deaconesses. The latter, in the first two centuries, 
formed a distinct category or class of ecclesiastics, though 
without any hierarchical or liturgical distinction. 1 The 
offices of grave-digger, interpreter, and chanter were enu- 
merated among the clerical orders, but gradually sank to 
lay rank. 1 Nevertheless, if singers perform their task 
with a spiritual intention, and not for gain or vanity, 
they may be said to exercise an ecclesiastical office. The 
same holds true of janitors and organists. Laymen, ac- 
cording to St. Peter, may be a "holy priesthood who 
offer up spiritual sacrifices " a in the Church, and thus 
act as functionaries of the Church at large. 

However, the divine and human organization of the 
Church contains a special class of persons for the per- 
formance of strictly ecclesiastical offices. Three charac- 
teristics single out these functions properly called ecclesi- 
astical: (1) They are established by divine or ecclesias- 
tical law; (2) they must be conferred according to the 
rules laid down by the Church ; (3) they must communi- 
cate some sort of ecclesiastical power. 

(1) The Divine Laav, as stated above, 4 singles out 

xCtr. Wielaod, Dit Gtntt'xscht 9Tb., p. 165 f.; p. 170 "• 

Enticickluno d*r tog. Ordmts B I Pet a, g. 

Minora, 1897, p. 60 ff. 4 Cm. 1©8, | 3. 



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102 



ECCLESIASTICAL PERSONS 



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bishops, priests, and ministers; human law (or rather 
ecclesiastical custom) has introduced other offices, partly 
of higher, partly of lower rank. 

(2) The rules according to which one may hold an 
ecclesiastical office can only emanate from that power 
which confers the rights inherent in that office. And 
since these rights are of a spiritual nature, the power 
which confers them is the spiritual society established by 
Christ, or the Church. Hence to her must belong the 
right to establish the mode and means by which a man 
may obtain an ecclesiastical office. 5 But it must be re- 
membered that the Church employs human factors and 
instruments in conveying ecclesiastical offices. Though, 
e.g., the supreme pontificate and the episcopate are of 
divine origin, yet the manner in which these offices are 
conferred has been determined gradually by human agen- 
cies, and historical facts must not be set aside for the 
sake of a preconceived idea. All that is necessary is to 
hold fast to the principle involved. 

(3) An ecclesiastical office must convey ecclesiastical 
power. This may be in the hierarchy of order, and thus 
we have the episcopate, the priesthood, and the ministry 
(i.e., the higher orders of deaconship and subdeaconship 
as well as the four minor orders, with tonsure as a step- 
ping stone) ; or it may be in the hierarchy of jurisdiction, 
which is supreme and ordinary in the Sovereign Pontiff, 
but dependent in the episcopate. Between these two there 
are different shades of jurisdiction, which the lumen 
mains has variously distributed. Every ecclesiastical 
office involves some jurisdiction, though its real and full 
nature appears only when exercised in foro externo. 
The term " ecclesiastical office " is generally to be taken 

tCone. Trid., SeM. 33, D§ Bcd.Hi*rch. #1 Or*., cc. 4. 7. 



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CANON 146 103 

in its proper sense as denoting ecclesiastical power. 
The next canon (146) touches the beneficiary or mate- 
rial element of ecclesiastical offices. Those who serve 
the altar are entitled to partake of the oblations made for 
the benefit of the altar. 6 This fact led canonists to say 
that an ecclesiastical office entails " the right to receive 
a definite share of the ecclesiastical revenues." 7 The 
terms " office " and * benefice " were looked upon as cor- 
relative and therefore used promiscuously. 8 The Code, 
however, justly speaks of the office in directo, and of the 
benefice in obliquo, treating the latter as an ecclesiastical 
thing (res) in the third book. But it adds that ecclesias- 
tical benefices fall under the rules governing ecclesiastical 
offices, the reason for which is evident from the mutual 
relation of the two. 

o I Cor. 9, 13. a Cfr. c. 9. C. 1, q. 3; c. I, X, V, 

TCf. Aichner, /. c, |?6, 1. 36; o. 15, 6°, I, 3. 



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CHAPTER I 
appointment to ecclesiastical offices 

Can. 147 

§ 1. Officium ecclesiasticum nequit sine provisione 
canonica valide obtineri. 

§ 2. Nomine canonicae provisioais venit concessio 
officii ecclcsiastici a competente auctoritate ecclesia- 

stica ad normam sacrorum canonum facta. 

Can. 148 

§ 1. Provisio officii ecclesiastic! fit per liberam col- 
lationem a legitimo superiore, vel per eius institu- 
tional!, si praecesserit praesentatio a patrono aut 
nominatio, vcl per eius confirmationem aut admis- 
sionem, si praecesserit electio aut postulatio, vel tan- 
dem per simplicem electionem et electi acceptationem, 
si electio non egeat confirmatione. 

§ 2. De officiorum provisione per institutionem ser- 
ventur praescripta can. 1448-1471. 

Can. 149 

Electi, postulati, praesentati vel nominati a quibus- 
vis personis ad ecclesiastica officia ne confirmentur, 
admittantur, instituantur a Superiore infra Romanum 
Pontifkem, nisi antea fuerint a proprio Ordinario ido- 
nei reperti, etiam per examen, si id ius vel officii ratio 
postulct aut Ordinarius opportunism iudicaverit 

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CANON 150 105 

Can. 150 

§ 1. Provisio officii de iure non vacant is ad nor mam 
can. 183, § i, est ipso facto irrita, nee subsequente 
vacatione convalescit 

§2. Nee promissio eiusdem officii, quicunque id 
promiserit, ullum parit iuridicum effectum. 

Can. 151 

Officium de iure vacans quod forte adhuc ab aliquo 
illegitime possidetur, conferri potest, dummodo rite 

secundum sacros canoncs dcclaratum fucrit earn pos- 
sessionem non esse legitimam v et de hac declaratione 
mentio fiat in litteris coliationis. 

These five canons define in logical succession canonical 
appointment, its various modes, and some necessary 
requisites, and also touch upon vacancy. That no one 
can obtain an ecclesiastical office without canonical ap- 
pointment follows from the necessity of the missio cano- 
nical and the fact that the Church is an organization. 

(1) Appointment implies three elements: (a) the 
granting or conferring of an ecclesiastical office, (b) by 
competent authority, and (c) according to canon law. 

The manner in which an ecclesiastical office may be 
conferred is: by free collation, investiture, confirmation 
or admission. 

Collatio libera, i. e„ a free appointment is made when 
he who appoints has the right not only to appoint but 
also to designate the person of the appointee. Thus the 
bishops of the U. S. are empowered to designate pastors 
and confer parishes on them. 

Investiture or collatio necessaria takes place when the 
clergyman to be appointed is designated by a third per- 



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106 ECCLESIASTICAL PERSONS 

son, — either presented by a patron (jus patronatus) or 
nominated by one who enjoys that privilege, as, for in- 
stance, the King of Spain or the Emperor of Austria. 

Confirmation or ratification follows election, properly 
so-called, which takes place when a chapter enjoys the 
right of electing the prelate. 

Admission, finally, is attached to postulation, which is 
a substitute for election when the person to be appointed 
surfers from a canonical impediment. 1 

The collatio libera confers full title to an office, or as 
the canonists say, jus in re — which means that the ap- 
pointee holds a title to the office in question and may en- 
ter upon it at any time. In other words, he only needs to 
be installed (introductio corporalis). An equally valid 
title is conferred by investiture, confirmation, and admis- 
sion ; that is to say, one invested, confirmed, or admitted 
receives the jus in re, whilst before these three acts he 
had either a mere fits ad rein, as by presentation, nomina- 
tion, or election, or no right at all, as in the case of 
postulation. 

(2) The competent authority in conferring major ec- 
clesiastical offices {prelacies) is the Sovereign Pontiff; 
lower offices may be bestowed by the Ordinary* This is 
the general rule, which will be further explained when we 
come to treat of various offices. 

(3) An ecclesiastical appointment must be made ac- 
cording to canon lam. Now the law, as will be seen 
under the respective headings, has set up certain rules to 
be observed in making appointments. Of these some 
touch the office itself, others the act of conferring it, 
and again others the necessary requisites in the candi- 
date. As to the latter, the Code lays them down under 



i G£ c 16, I 3, 6°. Ill, 4; ce ti, aWern*, Jut Dtcttt., XI, n. apr, 

12. X. I, 6; c. 3. X, I, s; X, III, 7. p. 397. «i. 1. 



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CANON 151 107 

each office, and hence we refer to the respective canons. 

But the Code mentions expressly one condition of the 
office to be conferred, vis., that it must be vacant. Va- 
cancy may be caused by resignation, privation, removal, 
transfer and lapse of time (can. 183, §1), and may be 
either de facto, or de jure only, or de jure et facto} An 
office is vacant de facto when no one actually holds or 
fills it, although some one has a lawful claim to it, e.g., 
a bishop exiled from his see. An office is vacant de jure 
if, as stated above, according to can. 183, § i, an intruder 
is in actual, though illegal, possession thereof. An office 
is vacant both de facto and de jure if no one holds or 
claims it. 

An office not vacant de jure cannot be conferred; and 
if it is conferred, the appointment is null and void be- 
cause against the law. Even if the office becomes vacant 
before the illegal appointee has taken possession, the 
appointment is null because made at a date when there 
was no vacancy. In consequence all acts, examinations 
or concursus performed in the interval would have to be 
repeated. 

An office vacant not de facto but de jure can be validly 
conferred after a declaratory sentence to the effect that 
there is a de jure vacancy, provided mention is made of 
that declaration in the letter of appointment. 

A brief but important paragraph is § 2 of canon 150, 
which precludes the so-called expectativae. These were 
introduced towards the close of the Middle Ages, and 
were nothing else but a practical conclusion from the 
right of the Pope as supreme collator of all benefices. 4 



8 Cf. Engel, HI, 8, No. 2; Mas- 4 Cfr. c. 2, X, III, 8; c. 4, X, III, 

chat-Giraldi, Institution*/ Canoni- 34; Wernz, II, n. 315 (p. 4*0, ed. 

cat. III, 18, n. 1; cfr. cc. i, a, 6, 1). 
X, III. 8; cc. 18, 28, 6°, in, 4- 



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108 ECCLESIASTICAL PERSONS 

The popes sometimes granted letters or rescripts to 
clergymen declaring that the bearer was entitled to a bene- 
fice — for the office they usually cared but little — as soon 
as it would become vacant. The possessor of such a let- 
ter, given at first in the form of preces, then as mandates 
(monitorial and even praeceptonae) t could lay claim 
to a benefice as soon as it became vacant, but had to wait 
(expectare) until it really was vacant. 8 Abuses arose in 
connection with these letters, and the rights of bishops 
and abbeys were much hampered, wherefore the Council 
of Trent set proper limits to these expectativae, admit- 
ting them only in case of coadjutors to bishops and ab- 
bots.* The new Code denies all juridical effect to any 
such promise, no matter by whom made, including, we 
suppose, the Pope himself, as far as he intends to bind 
himself by such laws. 

Finally, certain conditions are attached to the act of 
appointment, but these are not here specified in general. 
Some are mentioned in connection with special modes of 
appointment. It may not be amiss to state the general 
conditions as described by canonists. 7 

(a) The appointment must be made freely, deliber- 

a. 

ately, and absolutely, t, e., not extorted by fear or violence, 
or by attaching conditions to the office which its character 
does not imply and the appointer has no right to demand. 

(b) An ecclesiastical office must be conferred gratis, 
otherwise it savors of simony, which would nullify the 
act. Chancellor's fees for expediting the document are, 
however, permitted. 

(c) The appointment must be made publicly. The 



a Cfr. v. Schcrer, I, 283; Sag- 7 Cf r. Garzia, Dt Re Benificioria. 

rauller, p. 272. P. VIII, c. I, n. 1; cc. 8, 9, 34; 

« Trid., Scsi. 24, c. 19; Sew. 25, Wcrnz, II, n. 3*3 (p. 437, cd. 1). 
c. 7, Dt Rtf. 



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CANON 152 109 

new Code prescribes, in addition, that it must be made in 
writing.* 

(d) It must be made within the time determined by 

the Code for the office in question. 

.- 

ART. I 

T 

FREE APPOINTMENT (LIBERA COLLATIO) 

What is meant by free appointment has been explained 
above, both as to the designation of the person and the 
conferring of the office (collatio tituli). The present 
article doubtless treats of minor offices, which have no 
jurisdiction in foro externa, unless we include the office 
of vicar-general in the number of offices liberae colla- 
tionis, which is admissible. 

Can. 152 

Loci Ordinarius ius habet providendi officiis eccle- 
siasticis in proprio territorio, nisi aliud probetur; hac 
tamen potestate caret Vicarius Generalis sine man- 
date special!. 

The bishop or Ordinary of the diocese, according to 
the general rule, has the right to confer all the ecclesias- 
tical offices in his diocese, except those which the law 
exempts from his power, or unless his right is contested 
and the claim proved. 

(a) Exempt from this power by law are cathedral and 
collegiate chapters and the first dignitaries ; 9 concerning 
canonicates the bishop must proceed in harmony with 
his chapter. 

(b) The bishop's right may be limited by incorporation 

• Cfr. ce. 39a, 394, {a. Cf. cc. 39a, 394 5 a. 



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no ECCLESIASTICAL PERSONS 

and juspatronatus, which however must be proved by 
those who claim that right, as shall be seen in its proper 
place. Incorporation for forty years would create a pre- 
scription in favor of the corporation. 10 As to the jus- 
patronatus, what is necessary for our country to note on 
this subject will be said later. 

The above-mentioned cases excepted, the Ordinary is 
free in choosing his vicar-general and other officials of 
the diocese, 11 appointing consultors, rural deans, pastors, 
assistants and rectors. 11 

The v'\ car- general needs a special mandate to fill offices 
which the Ordinary is entitled to fill. The mandate must 
be given ad hoc, i. e., for the purpose of making the 
appointment. This means a special commission for each 
individual appointment, because each appointment is a 
separate juridical act which has no connection with any 
other. Therefore a general commission to appoint to 
ecclesiastical offices would not be valid. Besides the 
mandatories must follow strictly the terms of the man- 
date, else he would act invalidly. 1 



na fr« ale- a tin ihahIH »!*»•■ <n<rila/il« IB 



REQUISITES OF ECCLESIASTICAL OFFICE HOLDERS 

i 

Can. 153 

§ 1. Ad vacans officium prornovendus debet esse 
clericus, iis qualitatibus praeditus, quae a iure com- 
muni vel particulari aut a lege fundationis ad idem 
officium requiruntur. 

§ 2. Assumatur, omnibus perpensis, magis idoneus 
sine ulla personarum acceptione. 

§ 3. Cum provisus caret qualitatibus requisitis, pro- 



ioCt. X, II, 26, and Exjffel h. t. n. can. 455. Ii: can. 476, |j; 

33- 480, |t. 
dlCf. can. 366, B 2; can. 373. 18 Cfr. the commentators on X, I, 

as Cf. can. .;..j, can. 446, |aj 38, Dt procttrotoribus. 



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CANON 154 in 

visio est nulla, si ita cautum sit iure communi vel par- 
ticulari aut lege fundationis; sccus est valida, scd per 
sententiam a legitimo Superiore irritari potest. 



Can. 154 

- 

Officia quae curam animarum sive in foro externo 
sive in interno secumferunt, clericis nondura sacerdo- 
tio initiatis conferri valide nequeunt. 

Regarding the common law, our Code deals with the 
requisites for the single offices in connection with these. 
Note that no criminal, defamed, or censured ecclesiastic 
can be appointed to an office. 14 A particular law would 
be that the appointee must belong to a certain nation or 
family, or to the nobility, which played an important part 
in German cathedral chapters. The law of foundation 
is generally laid down in the founder's last will and testa- 
ment, which the Church regards as sacred. 

A brief remark on the " tnagis idoneus." The Code 
almost studiously avoids the terms " dignior " and " dig- 
nus" formerly used, and chooses the more flexible but 
also more juridical expression idoneus, which certainly 
is more in keeping with laws that deal with external 
qualities rather than internal. One is fit, just as one is 
worthy, if he lacks none of the qualifications prescribed 
by law. The fitter (magis idoneus) of two candidates 
is he who possesses these qualifications in a more con- 
spicuous degree. 18 But the law inculcates the duty of 
appointing the fitter candidate only by way of admonition, 
not prohibition, and, moreover, adds: "omnibus pcrpen- 



14 Cfr. c. 7. X. I, 6; c. 4, X, I, 18 Cfr. Smith, Elements, I, n. 

14: c. 4, X, V. 1; cc. f, 9. X. V, 27; 37*. P- 169: Weroz, II, o- 309 (p. 
Wernx, II, n. 298 (p. 4041 cd. 1). 414, ed. i). 



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lis ECCLESIASTICAL PERSONS 

sis." Therefore the judgment rests with the Ordinary, 
who must consider the place, time, and circumstances of 
the office as well as the qualifications of the clergyman to 
be appointed. Sometimes a good business manager is 
needed, sometimes an orator, sometimes an ascetic. One 
parish needs a democratic leader, another a more aristo- 
cratic one. If the bishop looks at the appointment merely 
from the point of view of necessity and utility, without 
sentiment, he may make a mistake but certainly will not 
commit a sin or breach of the law. 



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time of appointment 

Can. 155 

OfTiciorurn provisio cui nullus terminus fuit speciali 
lege praescriptus, nunquam differatur ultra sex menses 
utiles ab habita notitia vacationis, firmo praescripto 
can. 458. 



The date is definitely fixed for higher offices as well 
as for offices jurispatronatus ; but for minor offices of 
free appointment the time of six months was generally 
prescribed. 18 The Code employs the term utiles, which 
is analogous to tempus utile, 17 and implies that if the 
bishop should ignore the vacancy, or be prevented by a 
reasonable cause from making an appointment, the six 
months are to be counted from the time when he was 
free to act. In can. 458 the Ordinary is admonished to 
appoint permanent pastors, but allowed to put a vacant 
parish in charge of an administrator if this appears to 
him more prudent in consideration of the circumstances. 

lftCfr. cc a, s 13, X, III, 8; c. " Cir. can. 35. 

'.m. Clem. I, 5. 



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CANON 156 113 



INCOMPATIBLE OFFICES 



When the rule of the Council of Chalcedon that every 
cleric should be ordained and assigned to a definite church 
or service was abandoned, avarice and ambition and the 
evils attendant upon an incontinent clergy caused serious 
abuses in the shape of the holding of several ecclesiastical 
offices by the same person. The third and fourth 
Lateran Councils 18 sought to remedy this unlawful prac- 
tice, but the cumulatio beneficiorum flourished again dur- 
ing and after the " Babylonian captivity," until the Coun- 
cil of Trent 19 enacted wholesome reform laws and 
subsequent pontiffs enforced them. 20 The purpose which 
inspired the prohibition of holding two or more offices 
was twofold : — to counteract avarice and ambition and to 
provide efficacious and worthy ministers. The Code con- 
siders this last mentioned reason, and for the rest merely 
reenforces the Tridentine law. 



Can. 156 

§ 1. Nemini conferantur duo ofneia incompatibilia. 

§ 2. Sunt incompatibilia officia quae una simul ab 
eoclem adimpleri nequeunt. 

§ 3. Firmo praescripto can. 188, n. 3, concessio alter- 
ius officii a Sede Apostolica facta non valet, nisi in sup- 
plici libello mentio prioris incompatibilis habeatur, aut 
clausula derogatoria adiiciatur. 

The law exempts no one, not even learned and deserv- 
ing ecclesiastics," from the genera} prohibition. Besides 



isCfr. c. 3, X, III, 4: cc. 5, 28, zoBened XIV, De Sym. Dioec. 

X, III. 5; but "sublimes et litttratae XIII, 8 ff.; Wernz, II, n. 318 (p. 

ptrsotta*" were exempt from the 426 ed. 1). 

enforcement of c. a8. 21 Cfr. c. 28, X, III, 5. The Trid. 

19 Seu, 7, c. 4; Seas. 34, c. 17 Council, however, excepted no one, 

D n Rtf. not even Cardinal!. Seu. 14, c. 17. 



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ii 4 ECCLESIASTICAL PERSONS 

the Code says, " nemini . . . conferantur" which means 
that it is forbidden to confer, and not only to hold, in- 
compatible offices. 

Incompatible are such offices as exclude the possibility 
of doing justice to both. For instance, (a) offices which 
require personal residence, such as bishopries, canonries, 
parishes; " (b) offices which, though they do not require 
personal residence, are of the same nature and attached 
to the same church, chapel, or altar; for instance, chap- 
lancies or simple canonries 28 (called beneficia uniformia 
sub eodem tecto) ; 2i (c) a religious cannot be prior of 
one monastery and abbot of another .** 

Offices which require neither residence nor service in 
the same church are compatible if one is not sufficient 
for the decent support of a cleric. 28 

§ 3 adverts to a possible dispensation. This the Holy 
See alone can grant. However, if a petition were sent to 
Rome to obtain, for instance, two parishes, and it would 
not mention the fact of the petitioner already being in the 
possession of one parish, the rescript would be ipso jure 
invalid, 27 for the legislator is not supposed to act against 
his own law, unless he makes special mention of the 
exception, as by the clause, ex certa scientia, or de pleni- 
tudine potestatis, or etiamsi de illis specialis, specifica, 
individuate mentio sit facienda, or similar ones. 88 The 
mere clause motit proprio 29 would not have this effect. 

Can. 188, n. 3, refers to tacit resignation implied in the 

a 

n7Vi<*., Sew. *<\ t c. 17; cfr. tcr, I. c, p. 50, n. 9). 

Richfer, p. 376 ff. SO Cfr. Richter, L c, p. 50 ff. 

28 Trid.. Seis. 7. c. 4. D * R'f.; 27 Cfr. c. 23, 6", I, 4; c. a, Clem. 

Richter, p. 50 ff.; Engel, III, 5, n. I, 9- 

68. n Barbosa, Tract. Vat., el. 43; 

M Cfr. c a 8, X, III, 5; c. 9, X, cl. 59. 

HI, 8. 2» Cfr. Can. 46. 

IBS. C. C. 23 Febr., 1715 (Rich- 



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CANON 157 115 

acceptance and possession of an incompatible office. 
Therefore, even if a papal rescript provided with the 
necessary clause would have been granted to hold two 
offices, if these offices were incompatible, one would have 
to be resigned and vacated. 

Can. 157 

Officium vacans per renuntiationem vel per senten- 
tiam privationis nequit ab Ordinario, qui renuntia- 
tionem acceptavit aut sententiam tulit, valide conferri 
suis aut resignantis familiaribus, consanguineis vel 
affinibus usque ad secundum gradum inclusive. 

This canon is a repetition of two Constitutions 80 of 
Pius IV and Pius V, and rests, though not verbatim, upon 
the prohibition of the Council of Trent, 31 which says that 
every shadow of hereditary succession in ecclesiastical 
offices is odious : — an effective blow against nepotism. 

Familiares are such as serve one actually and depend- 
ency and belong to one's household and live at one's ex- 
pense. 82 Consanguinei would be nephews and first cous- 
ins, while afUnes could only be spoken of in case of a once 
married clergyman. Upon none of these, either his own 
or those of the resignatarius, may the Ordinary confer 
an office made vacant by resignation or a sentence of pri- 
vation. Neither may he admit any of the persons men- 
tioned to a concursus. 

The juspatronatus is not touched by this canon, nor are 
the familiars and relatives of the vicar-general de- 
barred, 83 unless, of course, it was he who accepted the 



80 Pius IV, " CupUntes," Oct- 82 Reiffenrtuel. II, jo, n. 122, well 

iz, 1560, Si; Pius V, " Quanto says: " ut actu insennat et hi veluti 

Eccletia," Apr. 1, 1568* 9 5- commrnjalU vivat txpensis dom- 

Sl Trid.. Seas. 25. c. 7. Dt Ref.; int." 

cfr. cc. 7. 10, 11, X, I, 17, Dt jS/to 18 Reiffenrtuel, I, 9, n. 118 S. 
prtsbyt. 



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116 ECCLESIASTICAL PERSONS 

resignation or passed the sentence of privation, for the 
canon speaks of the Ordinary. 

Can. 158 

Qui, alius neglegentiam vel impotentiam supplens, 
officium confert, nullam inde potestatem acquirit in 
nominatum ; sed huius iuridicus status perinde consti- 

tuitur, ac si provisio ad ordinariam iuris normam per- 
acta f uisset. 

This canon supposes the right of devolution brought 
into exercise either by negligence or inability of confer- 
ring the office at the time prescribed by law. In such 
cases the decretals" permitted the interference of the 
metropolitan if a suffragan bishop failed to make an 
appointment within six months. Our Code 88 admits the 
metropolitan's interposition only in the case of an office 
to which advowson is attached, or juspatronatus. Speak- 
ing, however, of inability the present canon seems to 
take a wider range which may extend to the case of a 
vicar-general conferring an office by special mandate. 
Yet even this must be excluded, for the juridical position 
would not be altered even if the vicar-general were al- 
lowed to interfere. The canon, therefore, must be lim- 
ited to the right of devolution. This, says the law, does 
not create any juridical change in the status of the per- 
son who has received an office in this extraordinary way. 
The reason is that if a superior supplements the negli- 
gence or inability of the lawful appointer, his right can- 
not be stretched beyond what is expressly and explicitly 
permitted by law, which admits the appointment but gives 
no further jurisdiction. 89 

ti Cfr. X, III. 10, Dt tupplenda U Cfr. Can. 374, i°. 

negligent ia proeht. ■« Rciffcn*tucl, 1, io t n. 10. 



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CANON 159 117 

Can. 1 59 

Cuiuslibet officii provisio scripto consignetur. 

Every appointment must be delivered in writing either 
by the Ordinary or by his chancellor, and, of course, 
properly signed and sealed with the diocesan seal. 



N 

■ 



ART. II 
election 

Can. 160 

Romani Pontificis electio unice regitur const. Pii X 
Vacante Sede Apostolica, 25 Dec. 1904; in aliis elec- 
tionibus ecclesiasticis serventur praescripta canonum 
qui sequuntur, et peculiaria, si qua sint, pro singulis 
officiis legitime statuta. 



I. ELECTION OF A POPE 

The historical evolution of the process of electing a 
Pope shows various phases. 

(1) Up to the time of Nicholas I (1059-1061) not 
only the clergy but also the senate and people of Rome 
had a share in the election, whilst the emperor claimed 
the right of ratifying it." 

(2) Nicholas II endeavored to reduce the undue in- 
fluence of senate and people. He reserved the right of 
electing the Pope chiefly to the clergy of the titular or 
cardinal churches of Rome, but did not entirely exclude 
the emperor. His decree S8 expressly emphasizes * the 
honor and reverence due to the King." 

a 

•TCfr. Manal. Coll. Cone, XIV, Publ., 1910, p. 8a f. 
479; Bacbofen, Summa Juris Eeehs. M C. 1, DUt. ay 



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1X8 ECCLESIASTICAL PERSONS 

| (3) The decretals of Alexander III (i 159-81) went 

further, and Gregory X (1271-76) finally reserved the 
right of electing the Pope to the Cardinals of the Ro- 
man Church. The so-called u Veto " or "jus exclusivae, 
which the monarchs of Austria, France, and Spain 
arrogated to themselves and by means of which they ex- 
cluded candidates unacceptable to them through the 
agency of one of their cardinals, was definitively abro- 
gated by Pius X." 

The question whether the Pope can legally designate 
his own successor is controverted. Technically, there is 
no doubt that the Pope has this right, because the mode 
of election now in vogue is merely a human (ecclesias- 
tical) law, by which the supreme lawgiver is not bound. 
Practically and morally speaking, however, such a right 
is not to be vindicated except in a very extraordinary 
and urgent case. The Pope, being a human being, might 
be too strongly inclined towards his family, and through 
nepotism the papacy might be in danger of becoming 
hereditary. Besides, the Pope is morally bound to re- 
spect the jus qucrsitum of the cardinals, which would be 
illusory if the Pope could set it aside at his pleasure. 
Felix III (526-30) nominated his successor, but this 
extraordinary act was prompted by peculiar circum- 
stances. 40 

At present the law concerning the election of a Pope 
is as follows: 

I. The only authorized electors are the cardinals, who 
must have received at least deaconship, unless permitted 
by a special Apostolic indult to remain in lower orders. 
Even censured cardinals enjoy a vote in the conclave, 
but not such as have been deposed or have resigned their 

»» A. Ap. S-, t. v. p. 35a; Acta Pii « Tueb. QuartaUehrift, 1903, p. 

X, 1908, in, J89 0. 9 i ff., Werm II, p. 651 (l cd.). 



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CANON 160 119 

dignity with the consent of the Pope. Absent cardinals 
must be invited by the Dean of the Sacred College or by 
another cardinal and admitted to the conclave as long: as 
no election has taken place. 

2. Concerning eligibility, the Constitution of Pius X 
merely admonishes the electors to choose one whom they 
deem fit. Since the end of the fourteenth century only 
cardinals, and since Hadrian VI (1523), only Italian car- 
dinals have been elected. 

3. The voting takes place by scrutiny, which may be 
performed only within the conclave. The latter point, 
however, no longer affects the validity of the election. 

Quasi-inspiration, compromise, and accessus seem to 
be excluded, as the Constitution makes no mention of 
these. The election is completed only when two-thirds 
of the votes or suffrages, cast secretly and according to 
the scheduled forms, fall on the same person. The vote 
of the elected cardinal may not be counted. It is evident 
that generally more than one scrutiny is required. The 
ballots must be burned. 

4. A purchased election would probably be valid, but 
those guilty of that crime (simony) incur excommunica- 
tion latae sententiae. The same penalty falls upon those 
who in any way admit the abrogated u veto." 

5. The cardinals may, during the vacancy of the 
Apostolic See, discuss probable candidates and their 
fitness for the office. This is called the tractatus 
praevius. 



2. ELECTION OF BISHOPS 



During the first ten centuries election in the proper 
sense was effected by the concurring suffrages and co- 
operation of the clergy and the people. Often sov- 
ereigns exercised an undue influence in the matter, espe- 



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120 ECCLESIASTICAL PERSONS 

daily after an exaggerated feudal system had created the 
so-called investiture with ring and crozier, which abuse 
was rectified by the Treaty of Worms (1122). Later 
on the corporate chapters of the cathedral churches 
legally exercised the right of electing the bishop. 41 The 
rule that all provisions belong to the Holy See (known as 
Rcgula II of the Apostolic Chancery) was never received 
outside of Italy, but remained a dead letter, like most of 
the other rules (with the exception of III) of the same 
chancery. 

A modification had naturally to take place when 
Protestantism severed many rulers and countries from 
the Church. The jus praesentandi granted to some sov- 
ereigns naturally ceased after their defection, and though 
a certain interference was still exercised, contra fas 
jusque, the diocesan clergy and neighboring bishops, 
under the supervision of the Holy See, took an important 
part in episcopal appointments. This happened espe- 
cially in Ireland, 42 where the ius comtnendandi in course 
of time almost became a ius nominandi. Rome was care- 
ful to keep the right of appointing bishops within its 
proper limits. Still the right of commending candidates 
was acknowledged in Great Britain and the United States, 
and the Third Plenary Council of Baltimore (tit. II, n. 
15) sanctioned the mode of selecting three candidates as 
dignissimus, dignior, diynus, respectively, at a meeting of 
the consultors and irremovable rectors of the diocese. 

c 

This terna was revised by the bishops of the respective 
province and the final decision given by the Propaganda 
and, of late, by the S. C. of the Consistory. A new 
method was ushered in — ad experimenti instar — by a 
decree of the S. C Cons, of July 25, 1916. It is difficult 



41 C- 35, Dirt. 63 (Lat IT. c. *l Eccles. Rtview, 1917 (56), p. 

f); cc. II, 36, A', 5». 56, X, 1, 6; 827. 
•v it ., 



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CANON 160 xai 

to describe this mode by a proper term, but we may call it 
a proposal for future appointments. 
The decree may be summarized as follows : 
i. The so-called candidates, whose names may be 
proposed, must enjoy certain qualities. They should be 
of mature age, but not too old, experienced in the prac- 
tical administration of temporal and spiritual affairs, of 
sound Catholic doctrine, — which means that they must 
not be suspected of Modernism, especially, — of more 
than ordinary learning, faithfully devoted to the Holy See, 
of good conduct and piety, of sound manners and health. 
Their family affairs should also be examined (art. 2). 

2. All bishops are called upon to send to their metro- 
politan the names of one or two priests, either of their 
own diocese or outside of it, whom they regard as pos- 
sible candidates for a future choice. This should be 
done in Lent, every two years, beginning with 1917 (art. 
1). In order that the bishops may be properly informed 
as to the character of the candidates, they should infor- 
mally and secretly ask their consultors and irremovable 
rectors — a reminiscence of the old method. They are, 
however, in no wise bound to accept or follow the infor- 
mation thus obtained (art. 2 ff.). The metropolitan fol- 
lows the same procedure in his archdiocese, and ulti- 
mately draws up an alphabetical list of the names re- 
ceived from all the bishops of the province (art. 5). 

3. The bishops meet tvith their metropolitatt after Eas- 
ter, at a convenient place and time, without attracting 
the attention of outsiders. To their meeting no other ec- 
clesiastic is admitted. One of the bishops (the youngest 
or the ablest) acts as secretary. After having taken the 
oath of secrecy, the bishops enter into a moderate (mod- 
erate, we suppose, as to time and spirit) discussion con- 
cerning the candidates proposed. Then they proceed to 



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122 ECCLESIASTICAL PERSONS 

balloting, in alphabetical order, the white ballot signify- 
ing u yes/' and the black one " no," and a neutral color 
"I abstain" (art. 12). The metropolitan and the secre- 
tary act as tellers. More than one vote may be taken. 
After a result has been obtained, the minutes of the dis- 
cussion and the result of the balloting are drawn up in 
form of a document by the secretary, who reads the same 
to his fellow prelates and has a copy made, which must 
be sent to the Apostolic Delegate, by whom it is for- 
warded to the Consistorial Congregation (art. 15 ff.). 

This, in substance, is the decree regulating the " pro- 
posal "of names, which are to be kept on record in 
Rome as well as in the secret archives of the metro- 
politan, at least as long as there is no danger of divulga- 
tion. The decree says nothing of the right of bishops, 
nothing about postulatio, nothing as to when a meeting 
should be called in case the metropolitan see is vacant. 

The juridical effect of the " proposal " or the ius nomi- 
nandi seu contntendandi, as once in vogue in the United 
States and still customary in Ireland, England, and 
Canada, is not to create a ius ad rem, but merely, as it 
were, a processus informativus, serving as a basis to the 
Holy See for the appointment of suitable candidates to 
vacant bishoprics. 

Quite naturally the question arises : Does this decree 
still hold good after the Code has gone into force? We 
believe it does, since the Code alludes to " peculiaria," 
where lawfully established. Besides, it is not probable 
that the framers of the decree of 1916 knew nothing of 
the present Code, which was then in its final shape, so far 
as the regulations concerning the election of bishops was 
concerned. But we may be allowed to express the hope 
that this decree will be changed or abolished if the ex- 
periment should prove unsatisfactory. 



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CANON 161 123 

Other ecclesiastical elections which fall under the ores- 
ent article, are those held in religious communities, espe- 
daily of exempt orders, who elect their prelates or 
superiors. 

TIME AND CONVOCATION 



■ 



Can. 161 

Si cui collegio sit ius eligendi ad vacans officium, 
elcctio, nisi aliud hire cautum merit, nunquam diffe- 
ratur ultra trimestre utile computandum ab habita 
notitia vacationis officii ; quo termino hurt i lit er e I apso, 
Superior ecclesiasticus, cui ius confirmandae electionis 
vel ius providendi successive competit, officio vacant! 
libere provideat. 



Can. 162 

§ 1. Salvis peculiaribus constitutionibus vel consue- 
tudinibus, collegii praeses, statuto modo, loco ac tem- 
pore electoribus convenient^ convocet omnes de 
collegio ; et convocatio, quando personalis esse debet, 
valet, si fiat vel in loco domicilii aut quasi-domicilii 
vel in loco commorationis. 

§ 2. Si quis ex vocandis neglectus et ideo absens 

in 

merit, electio valet, sed ad eius instantiam debet, pro- 
bata praeteritione et absentia, a competente Superiore 
irritari, etiam secuta confirmatione, dummodo iuridice 
constet recursum saltern intra triduum ab habita no- 
titia electionis f uisse transmissum. 

§ 3. Quod si plures quam tertia pars electorum 
neglecti fuerint, electio est ipso iure nulla. 

§ 4. Delectus convocations non obstat, si praeter- 
missi nihilominus interf uerint. 

§ 5* Si agatur de electione ad officium quod electus 



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124 ECCLESIASTICAL PERSONS 

ad vitam retinet, convocatio elcctorum ante officii va- 
cationem nullum habet iuridicum effectum. 

Canon 161 establishes the trimesire utile within which 
the election must be held. What utile means has been 
explained.** The Code adds that the three months' pe- 
riod must be observed unless the law provides otherwise, 
and law here means the common law, not constitution or 
custom. Hence the general law requires that an election 
be held within three months, unless, of course, some un- 
foreseen impediment should arise, 4 * for which the utile 
tempus is granted. If the legitimate electors fail to 
meet within that time, or can not agree upon a candidate, 
— for election certainly involves a result, not mere fruit- 
less scrutinies — then the one who is entitled to ratify 
the election, or to fill the vacant office by way of devo- 
lution, should make the appointment. This is the case, 
for instance, if a cathedral chapter allows the tempus 
utile to elapse. 48 But it also applies to religious com- 
munities, and the common law admits their constitutions 
only in so far as they do not conflict with the present 
canon. Hence privileges granting an extension of time 
must now be considered to be without effect. 48 Where- 
fore, for instance, in certain Benedictine Congregations 
which grant the right of ratification to the Abbot Presi- 
dent, the latter would be entitled to appoint, positis ponett^ 
dis. a candidate of his own. 

Canon 162 treats: 

( I ) Of the preliminary act of convocation, which con- 
cerns the mode, place, and time of the election. 

(a) The possible mode, in the juridical sense, would 

■ 

4:1 ri. can. j-.; can. 155. joy such a privilege; cfr. Piat. 

44 C. 41, X, I. 6. Mont. Pratl Jurit Reg., and ed.. I. 

45 Can. -n-', 9'- : l/i '< Bachofcn, Compendium Juris 

46 Can. 507. The Franciscan* en- Reg, p. 190. 



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CANON 162 125 

be twofold, vis,, scrutiny and compromise, quasi-fw- 
spiratio being excluded. Scrutiny is the usual way of 
electing by votes. Compromise is admitted by the Code 
and determined in c. 172 f. But the term "modus" 
may also be taken in a wider sense, as signifying the 
way in which to proceed in the election, as far as not 
determined by law; v.g.> mass and other solemnities, 
written or printed ballots, etc. 

(b) The place for holding elections is not determined. 
According to the old law, episcopal elections should take 
place in the cathedral. 47 For religious the whole convent 
is reputed to be a proper place; not even an interdicted 
place is excluded. 48 

(c) The time is to be determined by the head of the 
collegiate body. Any time of the day may be chosen, and 
it is proper that the Missa de Spiritu Sancto precede the 
act. 49 

(2) Convocation or summons must be served to all 
who belong to the body which is to elect. Therefore 

(a) All absent members must be summoned in such 
a way that, considering the ordinary means of communi- 
cation, the summons is apt to reach them wherever they 
may be. Hence if the summons is directed to one's domi- 
cile or quasi-domicile, or actual stopping-place (e. g., in 
vacation time), this is sufficient. If the letter is lost on 
the way, or miscarries, this accident has no juridical ef- 
fect. But it is advisable to have the letters registered, 
for the receipt would serve as a proof that summons has 
been duly made. Distance is a very immaterial point 
now-a-days. Besides, the Constitutions may provide for 
different emergencies. 

(b) Summons must be sent also to such as are under 



47 C. 38, X, I, 6. Juris Rte-, P. 189. 

48 Cfr. Bachofen, Compendium 40 Ibid., p. 195. 



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126 ECCLESIASTICAL PERSONS 

censure, unless they are excommunicati vitandi™ or have 
been legally deprived of their vote before the summons 
was sent. 

(c) The reason why all have a right to be summoned 
lies not only in the chapter-rights, of which that of hav- 
ing a voice in the election of superiors is the most promi- 
nent, but also in the danger of nullifying the election. 
For if only one member is absent by reason of not having 
been called, the election may be declared null and void. 
However, the one who feels himself slighted, in order to 
nullify the election, must furnish a twofold proof: first, 
that his absence was caused by not being summoned, and 
secondly, that he has put in his claim within three days 
from the date of the election. If the first proof cannot 
be furnished, the latter has no value. Hence the secretary 
of the chapter should keep a copy of the summons, with 
receipts for the registered letters sent out. The members 
should be called together in capttulo, and care be taken 
that all are present. If one is absent legitimately (i. e., 
not through his own fault), he is entitled to a personal 
summons; but if he knows of the convocation from an- 
other source, and that source can be proved, he is not 
entitled to remonstrate. The proof that he appealed 
within three days can easily be upset if the president keeps 
the minutes and records. 

(d) That more than one-third of the electors of any 
corporate body should be neglected in the case of an elec- 
tion is not probable, but should it happen, the election is 
null and void, and another must take place. To proceed 
to that, a comparison between the members entitled to the 
vote and the members neglected must be made, and if it 

is proved that the summons were not sent, the minority 

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CANON 163 127 

has the right to ask for another election. However, if 
they were present at the election, even though they did 
not vote, the election is valid, for summoning is only a 
means of calling together, not the purpose of election. 

(e) Paragraph 5 speaks of an office for life, and enacts 
that any meeting of the members entitled to take part in 
an election held before the vacancy of the incumbent pro- 
duces no juridical effect. Such a preliminary meeting 
or consultation about possible candidates savors of dis- 
respect for the present incumbent, opens the way to 
criticism and insubordination, and is forbidden to the 
cardinals under penalty of excommunication. 51 From 
such a meeting the so-called tractatus praevxus differs toto 
each. This is a meeting held in certain congregations 
immediately before the election of a superior, in order 
to discuss the qualifications of probable candidates. Our 
Code is silent on this subject, and we believe that the ad- 
visability of holding such tractatus praevii depends much 
on circumstances. In a monastery with many expositi 
such a preliminary discernment may accelerate an election 
and remove misgivings. Besides, it may bring out faults 
and mistakes of the former government which ought to 
be corrected. 52 

the electors (vox activa) 

Can. 163 

Convocatione legitime secuta, ius eligendi pertinet 
ad eos qui praesentes sunt die in convocatione statuto, 
exclusa facultate ferendi suffragia non solum per epi- 

51 Cfr. " Vacant* Sedg Apos- In which everyone is allowed to 

tolica," n. Bo; c. J, Dist. 79. criticize what displeased bin under 

bz At Einsiedeln in Switzerland the preceding regime, 
they hold ft io called Murr-Kofittl, 



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128 ECCLESIASTICAL PERSONS 

stolam, scd etiarn per procuratorem, nisi lege peculiari 
aliud caveatur. 

The Decretals as well as the Tridentine Council,* 8 and 
several decisions of the Roman Curia, had forbidden 
voting by proxy, the common opinion of canonists also 
voting by letter. 5 * Now the Code establishes the general 
law that only those actually present are allowed to vote, 
but voting by proxy or letter is permitted where a special 
law to that effect has been made by the collegiate body. 
Such a law may be contained in the Constitutions ap- 
proved by the Holy See. Custom, however, is inadmissi- 
ble in this matter because the Code speaks of laws enacted 
in a special manner. Where voting by proxy or letter is 
allowed, care must be taken that the secrecy of the vote be 
kept intact 

Can. 164 

Etsi quis plures ob titulos ius habeat ferendi nomine 
proprio suffragii, non potest nisi unicum fcrre. 



Can. 165 

Nullus collegio extraneus adraitti potest ad suffra- 
gium, salvis privilegiis legitime quaesitis ; secus, clectio 
est ipso facto nulla. 



Can. 166 

Si laici contra canonicam libertatem electioni eccle- 
siasticae quoquo modo sese immiscuerint, clectio ipso 
lure invalida est. 



If laymen interfere in any "way with canonical liberty 

BJ Cfr. c. 42, X, I, 6; S«s. 25, dentis arcano," May i f 1917; Ada 
c. 6, Dt Ftg. Ap. Stdit, Vol. IX, pp. 529 ff.; cfr. 



B4 Benedict XV, M Dei provi- 



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CANON 167 129 

in an ecclesiastical election, the election is ipso iure null 
and void. 

Canon 164 precludes the casting of several votes by the 
same person, though he may technically have the right to 
more than one vote, for instance, as canon and dignitary, 
consultor and irremovable rector. 

Can. 165 says that one who does not belong to the 
collegiate body, or is not a member of the chapter which 
has the right of election, may by custom or privilege be 
permitted to cast a vote," provided he is himself a cleric 
Unless custom or privilege — and both must be proved 
— warrant such a participation, no one who does not be- 
long to the body of electors has a right to interfere, and if 
the chapter should consent to such interference, the elec- 
tion would be null and void. 

Much less, says Can. 166, may a layman, no matter un- 
der what pretext, even though he be the patron of the 
monastery ao or church, be admitted to the election. And 
election here means not only the casting of the votes, but 
whatever belongs thereto. An exception, if such it be, 
may be made in favor of a layman's being present at the 
holy Mass, to pray for a good choice. 

Can. 167 

§ i. Nequeunt suffragium ferre: 

i.° Incapaces actus humani; 

2. Impubercs; 

3. Censura vel infamia iuris affecti, post sen tent iam 
tamen declarator iam vel condemna tor iam ; 

4. Qui sectae hereticae vel schismatic a e nornen 
dederunt vel publice adhaeserunt; 



Q 



BSCfr. c. 8, X, I, 4; c. 50, X, I, 6. layman, but wai reprimanded by 

ooCfr. c. I, DUt. 63 (Had.); c. Greg. IX: 'in disptniSium tcclt- 

ftt. X, I, 6. (Cluny had admitted a s\astica 9 Kbiftatit"), c. 56, X f I, 6, 



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130 ECCLESIASTICAL PERSONS 

5. Cardites voce activa sive ob legitimam iudicia 
sententiam sive ex iure communi aut particular!. 

§ 2. Si quis ex praedictis admittatur, eius guffragium 
est nullum, sed electio valet, nisi constet, eo dempto, 
electum non retulisse requisition suffragiorum nu- 
merum, aut nisi scienter admissus fuerit excommuni- 
catus per sententiam declaratoriam vel condemna- 
toriam. 

Impuberes are all under the age of fourteen. 67 Those 
who are "incapable of [eliciting] a human act" are 
generally called insane, although the authors 68 exclude 
from voting only such as have no control over themselves 
at all habitually, not such as have a lucid moment (lucidum 
intervallum) at the time when they cast their vote. 

By censure is understood any excommunication, sus- 
pension or personal interdict which has been inflicted 
either by the law itself for a grievous external fault and 
hence needs only to be declared to be incurred, or a 
penalty inflicted by legitimate ecclesiastical authority for a 
crime which, though not censurable in law, was imposed 
by the judge in the form of a sententia condemnatoria. 
Concerning the first kind, note that a declaratory sentence 
starts at the moment of the perpetration of the crime BB 
for which it was inflicted, whilst a condemnatory sentence 
must be formally pronounced in order to take effect. 
Hence if one had committed a crime deserving of censure 
by a declaratory sentence, even though he would be de- 
clared guilty only at or after the election, his vote would 
be null and void. The same holds good concerning in- 
famia juris, which is in law established for certain enor- 
mous crimes, 60 as well as with regard to heretics and 



67Cfr. can. 88. I a: c 32. X. I. l»Cfr. can. 3232. fi». 

6. 00 Such aa heresy and apostasy, 

•8 Cfr. Keiflenstuel, I, 6, n. 166. also Crimea of a frois nature com- 



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CANON 167 131 

schismatics. The term notnen dare means to enroll one's 
name on the official list of members of a non-Catholic 
sect, c. g., by taking a pew in a sectarian church, but one 
could not be said to have " given his name " if he merely 
contributed to a collection. 

Those who are deprived of an active voice in an election 
may be so deprived either by the sentence of an eccle- 
siastical judge (Ordinary, Pope, Abbot), or by reason of 
the law stating that penalty. Such are secularized and 
apostatized religious.* 1 The particular law sometimes in- 
flicts that penalty, e. g. t when the Constitutions of an order 
declare that religious who own property against the will 
of their superior, 02 or who reveal the secrets of the chap- 
ter, lose the right to vote. Here the Code does not require 
either a declaratory or a condemnatory sentence. Hence 
such religious are ipso iure deprived of the vote. How- 
ever, since either the fact of the perpetrated crime, or 
the penalty, may not be known to the electors, the presi- 
dent should formally exclude such members, or formally 
pardon them for the purpose of casting their vote. 

Here wc may explain the meaning of the absolutio im- 
parted at the beginning of an election. This is little more 
than a mere ceremony and does not render those excluded 
from the right of voting under our canon capable of vot- 
ing, but is intended ad cautelam. as the canonists say, i. e., 
in order that the election, if no essential feature is omitted, 
may take effect, and hence may not be frivolously at- 
tacked. For if it would take away the effects of penal- 
ties, these would be a mere mockery. 08 

The last paragraph (§2) says that the vote cast by 



D 



mitlcd by clergymen in sacrit, auch *3J'» «3Jfi» *34*> a 3$°, 'i^8, 2389. 

as sodomy, adultery, beitiality; cfr. as Trid., Seat. 95, e. a, Da Regg. 

can. 2314, 6 i. n. a; can. 2359, % 2. «3 Ferraris, Prompta Bibtiothtca, 

61 Cfr. can. 639 f. ; can. 2365; by s. v. " Pratiatut Kegularis," n. 73. 
a sentence of the judge cfr. co. 



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132 ECCLESIASTICAL PERSONS 

one incapable of voting does not render the election itself 
null and void, except in two cases: if the invalid vote 
were decisive, and if the electors would knowingly admit 
an excommunicated member. The first case is a rather 
difficult one. The secrecy of the ballot box, as now in 
use, seems to preclude an investigation. It is probably 
for this reason that the canon says, " si constat/' i. e., if 
it is evident. The fact might be evident to the tellers, 
whose statement in that case would be sufficient to nul- 
lify the election. The other case is more palpable, for 
the law requires a knowledge on the part of at least some 
of the electors of the fact of excommunication. If an 
excommunicated person were present in the room and 
could not be decently removed, the electors would have to 
protest against his presence and also state that his vote 
would not count.** The tellers could then simply throw 
it out. 

Can. 168 

Si quis ex electoribus praesens in domo sit in qua 

fit electio, sed electioni ob inlirmam valetudinem in- 
teresse nequeat, suffragium eius scriptum a scrutatori- 
bus exquiratur, nisi aliter particularibus legibus vel 
legitimis consuetudinibus fuerit constitutum. 

This rule, of course, applies only when the sick person 
is in a normal mental condition; otherwise there is not 
only no obligation to obtain his vote, but by reason of 
can. 167, § 1, n. i, he is excluded from voting. 



Can. 169 

§ 1. Suffragium est nullum, nisi fuerit: 

i.° Liberum; et ideo invalidum est suffragium, si 

fl« Kciflenatuel, I, 6, n. 169. 



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CANON 170 133 

elector metu gravi aut dolo, directe vel indirecte, adac- 
tus fuerit ad eligendam certam personam aut plures 
disiunctive ; 

2.° Secret um, cert urn, absolutum, d etc rmina turn. 

§ 2. Conditiones ante electionem suffragio appositae 
tanquam non adiectae censentur. 



Q 



Can. 170 
Suffragium sibimetipso nemo valide dare potest. 

The first essential requisite of a vote is (a) that it be 
given freely. Hence if a voter is influenced, either 
directly, i. e., at the election itself, or indirectly, «. e., be- 
fore the election but for the purpose of electing a certain 
person, no matter whether this influence was exercised 
by insiders or outsiders, through grievous fear" or de- 
ceit, i. e., bribery, or false representations, his vote is 
ipso iure null and void. 66 Undue influence of senior 
upon junior members would not invalidate the vote, but 
might endanger its liberty, so that the tellers would be 
obliged to reject the ballots. 

(b) A vote must furthermore be secret, because of the 
probable consequences of partisanship, enmity, prefer- 
ence, and other evils. Hence the Decretals as well as 
the Council of Trent insist upon secrecy, 67 and all pre- 
cautions must be taken that no one's vote is ever revealed. 
For this reason the names of the candidates as well as 
those of the electors should be printed and distributed. 
No mark should be put on the ballots, and no showing 
them to others is permitted. 

(c) A vote must, in the third place, be certain, 1. e., 

cast for a determined person. It would be uncertain if 

- 

« Cfr. can. 3205, 9 *• « Cfr. c 43, X, I, 6; Trid., Sen. 

«8 Cfr. cc. 14, 43, X, I, 6. 35. & 6, De Kegg. 



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ECCLESIASTICAL PERSONS 



written thus: " I elect the one who has the most votes." 
Absolute is the opposite of conditional. A conditional 
vote would be: "I elect N. if he accepts." A vote is 
determined if the candidate cannot be mistaken and it 
spells almost the same as certain. 

Any stipulation made before the election is null and 
void ; hence no " capitulatio," as was sometimes done be- 
fore papal elections, and no promise may be made, or if 
made, it need and should not be kept after the election. 



BALLOTING 



Can. 171 

§ 1. Ante elect ionem per sec ret a. suffragia deputen- 
tur, nisi iarn propriis statutis deputati sint, e gremio 
collegii duo saltern scrutatores, qui una cum praeside, 
si et ipse e gremio collegii sit, iusiurandum interpo- 
nant de munere fideliter implendo ac de secreto ser- 
vando circa acta in comitiis, etiam expleta electione. 

§ 2. Scrutatores curent ut suffragia secreto, dill- 
genter, singillatim et servato praecedentiae ordine ab 
unoquoque electore ferantur; collectisque ad ultimum 
suffrages, coram praeside electionis, secundum for- 
mam propriis constitutionibus vel legitimis con- 
suetudinibus statutam, inspiciant an suffragiorum 
numerus respondeat numero electorum, suffragia ipsa 
scrutentur palamque faciant quot quisque retulerit. 

§ 3. Si numerus suffragiorum superet numerum eli- 
gentiurn, nihil est actum. 

§ 4. Suffragia statim, peracto unoquoque scrutinio, 
vel post sessionem, si in eadem sessione habeantur 
plura scrutinia, comburantur. 

§ 5. Omnia electionis acta ab eo, qui actuarii mu- 
nere fungitur, accurate describantur, et saltern ab eo- 



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CANON 171 135 

dem actuario, praesidc ac scrutatoribus subscripts, in 
collegii tabulario diligenter asserventur. 

Unless otherwise provided for in the statutes of the 
respective corporation, at least two tellers, who are mem- 
bers of the chapter, must be appointed by secret suffrage 
immediately before the election. These tellers, as well as 
the presiding officer (if he belongs to the chapter), must 
take an oath that they will faithfully fulfill their duty and 
keep the proceedings secret even after the election. 

The tellers must see to it that each elector votes 
secretly, singly, and according to the order of precedence. 
After the votes have been collected the tellers shall, in 
the presence of the presiding officer, count them accord- 
ing to the constitutions and customs proper to the chapter, 
to see whether the number of the ballots corresponds with 
that of the electors ; and then ascertain and announce the 
result. 

If the number of votes cast exceeds that of the voters 
the election is void. 

The ballots must be burnt after each scrutiny, or at 
least after each session, if several ballots were take in one 
one session. 

The minutes of the election must be accurately taken 
down in writing by the secretary, who together with the 
presiding officer and the tellers must sign the record, 
which is to be carefully preserved in the archives of 
the chapter. 

This important canon embodies the famous chapter 42 
of the Decretals of Gregory IX (I, 6), which has been 
elaborately explained by the commentators. However, 
the new law modifies and simplifies the procedure. Thus, 
only two tellers are required, but these must be members 
of the chapter which elects a superior. They must be 



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136 ECCLESIASTICAL PERSONS 

chosen by secret ballot, unless the statutes determine who 
are to serve as tellers, for instance, the two seniors, or 
the two juniors, or the two oldest definitors. The tellers 
must be chosen immediately before the election. Their 
function consists in watching that the voting takes place 
according to law : secreto, i e., so that no one can perceive 
in any way, or by any sign, to whom another gives his 
vote. This can best be accomplished by using printed 
ballots and folding them in such a way that the name 
does not appear. The folded ballots are cast into a 
chalice or urn in presence of the tellers. Diligenter for- 
merly meant that the tellers had to urge the electors to 
give their vote to a worthy candidate and with holy zeal. 
This was necessary when the electors bad to inquire and 
put down the names of those for whom the vote was 
cast. 08 Now-a-days diligenter may be taken as an ex- 
hortation to the electors to vote conscientiously and so as 
not to delay the election. Singillaiim means that the 
electors should vote one after another, not two or three 
at the same time, which might furnish an opportunity 
for fraud. Hence the order of precedence is pre- 
scribed, which says that the senior member of the com- 
munity should vote first. Seniority is to be taken ac- 
cording to the date of profession in religious bodies, or 
the date of appointment or choice in chapters or boards 
of diocesan consultors. However, if the Constitution of 
an order or congregation prescribes that the junior mem- 
bers should cast their vote first, this rule must be ob- 
served- 
After all have cast their vote, the tellers, in the pres- 
ence of the presiding officer, should first compare the 

number of votes cast with the total number of those 

- 
< 

08 Reiffenstnel, X, 6. n. 128. 



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CANON 171 137 

who were entitled to vote. If there are fifty lawful 
electors present and fifty-one votes are cast, the election 
is null and void and another ballot must be taken. When 
the number of votes cast tallies with that of the voters 
present, the ballots must be opened (unfolded) and ex- 
amined as to their validity, which may be affected by the 
vote itself, by the person who cast it, or the one for whom 
it is cast. 

(a) Every ballot must be cast according to can. 169, 
and hence uncertain, conditional, and undetermined votes 
are not counted. 

•a 

(b) The person who has cast the vote may be incapa- 
ble of voting, which would make his vote null and void ; 
but this defect should be decided before the balloting, 
although such an invalid vote may be rejected after the 
election if its invalidity was not discovered before. 

(c) The person for whom the vote is cast may suffer 
from an impediment which renders him incapable of 
accepting the election, at least without a dispensation. 
If the impediment is such that a dispensation may be 
obtained, the person thus affected must be postulated 
(can. 180) and the phrase " I postulate " be used in the 
vote or ballot Otherwise the vote is invalid. The im- 
pediments which may arise in the case of religious are 
stated in can. 504 of our Code, where the Constitutions 
of each religious congregation are enforced and, besides, 
the following conditions laid down : that no one is eligible 
who has not been in the order at least ten years from the 
date of simple profession and who is not of legitimate 
birth ; fl9 that, to be elected superior general or abbess, a 
candidate must be forty years of age, whilst to be elected 

provincial or abbot or guardian, etc., the age of thirty 

< 

oo Rejula juris 87 in 6°: " infamibus portae non paleant dignikitum." 



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138 ECCLESIASTICAL PERSONS 

St 

suffices. The Constitutions of some orders lay down 
other and stricter conditions for the respective offices. 

Under the old law heretics and apostates, forgers of 
apostolic documents, 70 persons guilty of sodomy, 71 those 
who from ambition consent to their election before the 
result is published, 72 and those who used simonical means 
were excluded. 78 The Code does not mention these 
disqualifications, but it would be neither against the law 
nor superfluous to insert them in the Constitutions. 

The result of an election is to be made public by the 
tellers, together or singly announcing how many votes 
each candidate has received. 

Summarizing the new law governing elections we may 
lay down the following as its essential points: 

(i) Two tellers secretly elected from the members of 
the body; 

(2) Oath taken by the tellers; 

(3) Duty of tellers respecting the casting of the votes; 

(4) Collecting of the votes; 

(5) Examination as to the number of votes and voters; 

(6) Inspection of the ballots; 

(7) Publication of the result. 

The rest of the text (§§ 4 & 5) is plain enough. It is 
not so evident, to us at least, why no oath is required from 
the presiding officer if he does not belong to the gremiutn 
collegii. Of course, we understand why he cannot strictly 
be obliged to take the oath, for he does not belong to the 
chapter and therefore the chapter has no authority to de- 
mand an oath of him. However, the supreme legislator 
could oblige such a one to take the oath of secrecy because 
the presiding officer at an ecclesiastical election acts in the 



p 



toC. 7. X, V, to. 7= C. 46, X, I, 6. 

ti Pius V, " Horrtttdun," Aug. ia C. aj, X, V, 33- 

30, 1368. 



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CANON 172 139 

name of the Church. And we believe it would be very 
opportune to put him under oath because strict secrecy is 
very important iu an election, and although he is bound 
by the professional secret, yet the religious act of taking 
an oath would add weight to the natural obligation. 

The oath itself may be taken upon the Holy Gospels, 
which is the usual form, or without the Gospel Book, by 
simply swearing in the name of God. 



COMPROMISE 



Can. 172 

§ 1. Electio, nisi aliud iure caveatur, fieri etiam 
potest per compromissum, si nempc electores, unanimi 
ct scripto consensu, in unum vcl plures idoneos sivc 
de gremio sivc extraneos ius eligendi pro ea vice 
transferant, qui nomine omnium ex recepta facultate 
eligant. 

§ a. Si agatur de clericali collegio, compromissary 
debent esse sacerdotes, secus electio est invalida. 

§ 3. Compromissary debent pro validitate electionis 
conditiones compromisso appositas, quae non sint con- 
tra ius commune, observare ; si nullae conditiones ad- 
ditae fuerint, servandum ipsis est ius commune circa 
electiones; conditiones autem contra ius pro non ap- 
positis habeantur. 

§ 4. Si ab electoribus in unam tantum compromis- 
sum fuerit personam, haec nequit seipsam eligere; si 
plures designati fuerint compromissarii, nemo ex iis 
proprio consensu potest accedere reliquis ipsum eli- 
gentibus ut electionem sui compleat. 

This canon provides that an election, unless otherwise 



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■ 



provided by law, may take place "by compromise, I.e., 
the electors may, by unanimous written consent, bestow 
the right of electing upon one or several fit persons, who 
may be either members of the chapter or outsiders, and 
who, by virtue of the faculty received, perform the elec- 
tion in the name of all. 

In clerical chapters the compromissarii must be priests, 
otherwise the election is invalid. 

The compromissarii, in order to elect validly, must ob- 
serve the conditions laid down in the compromise, as far 
as these do not contravene the common law; if no con- 
ditions are mentioned, the common law concerning elec- 
tions must be followed. 

If there is only one compromissarius, he may not elect 
himself; if there are several, none of them may add his 
vote to the votes cast for himself in order to be elected. 

The Code, following the Decretals/ 4 admits the form of 
compromise and sets up several rules for it. 

The first rule is that the compromise must be made by 
unanimous consent, because an election touches all and 
must therefore be approved by all.™ The consent must 
be given in zvriting (formerly this was not required), 
and therefore all the electors must sign their names to the 
compromise. The electors may choose either from their 
own (chapter) or outside, i. e. t such who would not have 
a right to vote, as in the example referred to in the pre- 
vious note concerning nuns appointing the bishop as their 
compromissarius. 

The second rule, although not especially stated, is that 
the compromissarii must be clergymen,™ and if the elect- 
ing body is of the clerical order, the Code says they must 
be priests. What is meant by clerical order or community 



T4Cf. c. A3, X, I, 6; in c. 8 it>. 
T6 Rtff, juris 29 in 6°. 



7«Cf. c. 8, X, I, 4i, dt arbitris, 
c. j, XII, i dw i*dk.; can. 166. 



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CANON 172 141 

is stated in can. 488, § 4. where a clerical order is defined 
as one, most of whose members are priests. A lay order, 
0. g., is that of the Christian Brothers, who may choose 
brothers of another community, or even of a different 
order, as compromissarii. 

The third rule touches a conditional compromise, which 
is sometimes called limited, or a compromise with restric- 
tions, as, for instance, if the electors agree to elect one of 
the members of their own community/ 7 or to employ the 
advice of certain persons,* 8 to elect within a specified time. 
If the condition added militates against the common law 
which determines the fitness of persons or the mode of 
election, no attention must be paid to it. But the com- 
promissarii must follow the common rules of election and, 
of course, observe the trimestre. 

The fourth rule excludes electing oneself. If only one 
compromis sarins is chosen he cannot elect himself. But 
there may be several comprotnissarii, an example of which 
is stated in the Decretals ™ : Seven were comprotnissarii 
to elect a dean of the chapter; three chose one of the 
seven and the other three chose another, who was not one 
of the seven. Pope Innocent decided that the former was 
elected if he consented to his election and there was no 
canonical impediment. Under the new Code this is im- 
possible, because the candidate would not be allowed to 
accede to the votes given for him. But if four votes of 
the seven, not counting that of the elected candidate, 
would fall upon the same person, that person would be 
legitimately elected. Thus, also, in the case of three 
compromissarii casting two votes for the third compro- 
missarius, the latter would be elected if there were no 
obstacle to invalidate his election. 



Q 



". 



TT Cf. cc. 33 *.. X, I, 6. « C 33, X, I, 5. 

t» a. e. S*. x, 1, 6. 



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142 ECCLESIASTICAL PERSONS 

Can. 173 

Cessat compromissum ct ius cligcndi redit ad com- 
promi ttentes : 

i.° Revocatione a collegio facta, re integra; 

2. Non secuta aut non servata aliqua conditione 
compromisso apposita; 

3. Electione absoluta, si fuerit nulla. 



Canon 173 decides when the compromise may be 
repeated, and when it ceases. The lawful electors may 
recall the compromise as long as it has not taken a legal 
turn (re integra). The legal turn has commenced, ac- 
cording to the old law, 80 which is not changed in this re- 
gard, when the cotnprontissarii have repaired to a separate 
place or room and begun to treat of the person to be 
elected. 

The right of electing returns to the original electors: 

a) If any condition is not fulfilled by the compromis- 
sarii, for instance, if the time set for the election elapses 8l 
or if an unfit (indignus) candidate is elected. The non- 
observance of any reasonable condition which is not 
against the common law, deprives the compromissarii of 
the right of election, which consequently returns to the 
legitimate electors, not to the superior, because the Code 
explicitly says : " ius eligendi redit ad compromittentes." 

b) If the compromissarii have made an election, but 
this is void for any reason, e. g., the unfitness of the can- 
didate elected, the right of electing returns to the original 
electors. 

The question may arise whether religious communities 



so C. 30, X, I, 6. canonists taught; cfr. Reiffenstucl, 

«l C. 37, 6\ I, 6; bat the canon I, 6, n. 93, and others, but this is 

states that the right of electing rejected by the new Code. 

passes to tbe superior, as the 



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CANON 174 143 

may employ the compromise. The answer is yes, because 
the Code admits it in general terms. Hence, if the Con- 
stitutions contain nothing to the contrary, a religious com- 
munity may elect a superior by compromise. 

s 

u 

the number of votes required 
Can. 174 

Is electus habeatur et a collegii praeside proclame- 
tur t qui requisitum suffragiorum numerum retulerit, 
ad normam can. 101, § i, n. z. 



■ 



The one who has received the number of votes required 
under can. ioi, § 1, n. 1, is elected and must be proclaimed 
by the presiding officer. 

The canon referred to states that an absolute majority 
of votes is required to carry an election. 

effect of the election 
Can. 175 

Electio illico intimanda est electo, qui debet saltern 
intra octiduum utile a recepta intimatione manifestare 
utrum electioni consentiat, an eidem renuntiet; secus 
omne ius ex electione quaesitum amittit. 

The result of an election must be immediately made 
known to the one elected, who is obliged within eight days 
(utiles from the date of notice) to signify his intention 
of accepting or not accepting the election. If he fails to 
do this, he forfeits every right acquired by the election. 

Now-a-days the means of communication are so swift 
and convenient that the result of an election may be made 
known to the one elected more rapidly than in former 
times, wherefore the Code uses the term illico, without, 



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144 ECCLESIASTICAL PERSONS 

however, determining its exact meaning. Formerly in- 
timation was to be made quatn citius* 2 which was inter- 
preted as meaning eight days from the date of election. 6 * 
Of course, the notice of election should be sent imme- 
diately to the person elected, because illico means without 
delay, and from the spot or place where the election was 
held. Formerly the person elected was given one month 
for deliberation, 84 now he is given only eight days. Still 
the new law leaves some margin, in as far as the eight 
days are utiles or equitable. Therefore if an unforeseen 
impediment, over which a man has no control (e. g., sick- 
ness or delay of trains) would arise, this delay would not 
affect the right acquired by election. But if malice or 
negligence caused a delay, the right accruing from election 
would be ipso iure forfeited. 



Q 



Can. 176 

§ 1. Si electus renuntiaverit, omne ius ex electione 
quaesitum amittit, etsi renuntiationis euro postea poe- 
niteat; sed rursus eligi potest; collegium autem intra 
mensem a cognita renuntiationc ad novam electionem 
procedere debet. 

§3. Acceptatione electionis electus, si confirma- 
tione non egeat, plenum ius statim obtinet ; secus, non 
acquirit nisi ius ad rem. 

§ 3. Ante acceptatam confirmationem ipsi praetextu 
electionis non licet sese irnmiscere administrationi offi- 
cii sive in spiritualibus sive in temporalibus, et actus 
ab eo forte positi nulli sunt. 



Every man is free to accept or refuse an election. Re- 
ligious are no exception. Hence not even the superior 



HC. 6. 6 8 , I, 6. **lt>id. 

MC 16, 6° t I, 6, 8 Caeterum. 



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CANON 176 145 

can compel a religious to accept an election, because the 
freedom to refuse office has not been taken away by pro- 
fession.* 5 But once having refused, he has lost his rights, 
nor can they be regained by a change of mind. There- 
fore, when an elected person refuses to accept, the electors 
must proceed to another election. At this second election 
the one who was first elected, but refused, and subse- 
quently changed his mind, may again be elected. 

Paragraph 2 mentions the right following acceptation. 
This right is either in re or ad rem. A right in re creates 
the faculty and power to dispose of a thing as one's own; 
thus a proprietor may do with his property as he pleases, 
unless the law intervenes. A ius ad rem is a right which 
creates a claim to a thing, or causes it to become one's own 
(ut res Hat sua), though he does not yet have it in his 
hands nor can dispose of it freely. One elected to office 
obtains a ius ad rem if the election needs ratification by a 
superior. But if the very act of election and acceptation 
puts him in possession of the office or prelacy, he has a 
JKf in re, or an unimpeached right to administer the office. 

§ 3 explains what one who has been elected and ac- 
cepted, cannot do if the election requires confirmation. 
Since he is not yet the proprietor or possessor of the office, 
he cannot interfere with its spiritual or temporal adminis- 
tration, and consequently, even if he has been adminis- 
trator ad temp us or procurator, he has to abstain from acts 
of jurisdiction. However, we believe that common acts 
of buying and selling and administrative routine affairs, 
provided nothing is done detrimental to the church or 
community, may be performed by such administrators- 
elect." But strictly legal acts, such as appointment to 

a 

bo Engel, I, 6, n, 46. some allowance for provinces re* 

8fl Cf. ReiflenstucI, I, 6, a. 47; mote from Rome. 
Engel, I, 6, d. si. who even makes 



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146 ECCLESIASTICAL PERSONS 

offices or presentation to parishes, and acts of jurisdiction, 
such as giving faculties for hearing confessions, inflicting 
ecclesiastical censures, absolutions and dispensations, 
would be of no juridical effect (actus ab eis forte positi 
nulli sunt). 
I Can. 177 

§ 1. Elect us, si electio confirm atione indigeat, sal- 
tern intra octiduum a die acceptatae electionis confir- 
mationem a competente Superiore petere per se vel 
per alium debet; secus omni iure privatur, nisi pro- 
baverit se a petenda confirmation iusto irnpedimento 
fuisse detentum. 

§ 2. Superior, si electum rcpererit idoneum, et ele- 
ctio ad normam iuris fuerit peracta, nequit confirma- 
ticnem denegare. 

§ 3. Confirmatio in scriptis dari debet. 

§ 4. Recepta confirmation^ electus obtinet plenum 
ius in officio, nisi aliud in iure caveatur. 

This canon states the necessity of ratification, which is 
evident because the legitimate superior's power cannot be 
set aside. Ratification must be sought under penalty of 
forfeiting the rights accruing from election. Under the 
Decretals " this penalty was so severe that it rendered a 
person incapable of obtaining any office in future. This 
is abolished by the new Code. If the elect can prove, by 
at least one trustworthy eyewitness, or other lawful proof, 
e. g. t the testimony of a physician, that he was prevented 
from asking ratification, the rights acquired by the elec- 
tion remain intact. 

The competent superior, from whom ratification must 
be demanded, is the one next in authority. 88 Thus a pro- 



•T C I?, X, I, fi; C 5, 6', I, 6; 8» Engcl, I, 6, n. 50. 

Engel, I, 6, a. 51. 



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CANON 177 147 

vincial would have to ask the general's confirmation; 
bishops are confirmed by the Holy See. Religious orders 
and congregations mostly state in their constitutions who 
has the right of confirming elections. 8 * Superiors of dio- 
cesan institutions are ratified by the respective Ordinary. 90 
The Code says (§2) that a superior is not at liberty to re- 
fuse ratification arbitrarily. This does not apply to the 
Supreme Pontiff, who, unless bound by a concordat, may, 
even without reason, refuse to confirm the elect. 81 Other 
superiors are obliged to ratify the election if the person 
elected is fit and the election was valid, because an election 
and its acceptance produce a right." 

Ratification, which must be given in writing (§3), 
creates a full right to the office, unless consecration or 
benediction is required to enable one to exercise pontifical 
functions. Abbots regular, in order to be allowed the 
exercise of pontifical functions, must be blessed by the 
diocesan bishop within three months from the date of 
their election, * 



DEVOLUTION 

D 



Can. 178 

Si electio intra praescriptum tempus peracta non 
fucrit aut collegium iure eligendi privetur in poenam, 
libera officii provisio ad eum Superiorem devolvitur, a 
quo confirmanda esset electio vel cui ius providendi 
successive competit. 

If an election was not performed within the term pre- 
scribed, or if the electors were legitimately deprived of 
the right of election, the right to appoint one to the vacant 
office devolves on the superior who would otherwise ratify 

89 These Constitution* are ad- 91 Reiffenatuel, I, 6, n. 28. 

niitted by the Code, can. 507, |i. 81 C 3, X, I, 6. 

bo Can. 506, I 4. " Can. 6*5; c£ cc. 325, 96*. n. 1. 



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148 ECCLESIASTICAL PERSONS 

the election, or on the one who is next as to the right of 
appointment. 

The time prescribed in can. 161 is three months from 
the date when notice was given of the vacancy."* There- 
fore the electoral college loses the right of election after 
said term has expired. It may, moreover, forfeit the 
right by electing one unfit for the office, or by setting 
aside the substantial form required by law. 08 In such 
cases the right of election devolves either on the superior 
who has the right of ratifying the election, which is the 
case in religious communities, or on the superior who is 
called upon to supply the negligence of an inferior, as 
happens in cathedral chapters. 00 The case may arise that 
one who is elected suffers from a hidden impediment, for 
instance, illegitimacy unknown to the electors, or at least 
to the majority of them. Is such a one allowed to accept 
the election? If he can decline it without defamation or 
losing his reputation, he is bound to do so. But if he is 
reasonably afraid of losing his good name, or if the 
church or community would suffer by his refusal, he is 
allowed to accept, but should ask secretly for a dis- 
pensation." 

ART III 

postulation 

Can. 179 

§ 1. Si electioni illius quem clectores aptiorem pu- 
tcnt ac praeferant, impedimentum obest, super quo 
dispensari possit ac soleat, suis ipsi suffrages eum pos- 
sunt, nisi aliud hire caveatur, a competente Superiore 

N Cc. 7, 41, X, I, 6. Kef.; c. 18, 6°, I, 6, reserve* that 

BoC. 1 8, 6% I, 6. right to the Roman Pontiff with 

©6 Cf , cc 3i5! X. I, io; co. a, la, regard to cathedral chapters. 

X, III, 8; Trid.. Sess. 24, c. 16, Dc 87 Engel, I, 6, n. 45. 



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CANON 179 149 

postulare, etsi agatur dc officio, pro quo electus con- 
Brmatione non egeat. 

§ 2. Compromissary postulare nequeunt, nisi id in 
mandate aut compromisso fucrit cxpressum. 

Can. 180 

§ 1. Ut postulatio vim habeat, pro ea stet oportet 
maior suffragiorum pars, imo, si cum electione con- 
currat, saltern duae tertiae partes requiruntur. 

§ a. Suff ragium pro postulatione exprimi debet per 
vcrbum: postulo, aut aequivalens; formula: eligo vel 
postulo, aut aequipollens, valet pro electione, si irnpe- 
dimentum non exsistat, secus pro postulatione. 

Can. 181 



§ 1. Postulatio saltern intra octiduum mitti debet 
ad Superiorem ad quern pertinet electionem confir- 
mare, si facultatem habeat ab impedimento dispen- 
sandi ; secus ad Romanum Pontificem aut ad alium ha- 
bentem facultatem. 

§ 2. Si intra praescriptum tempus postulatio missa 
non fuerit, ipso facto nulla evadit et electores pro ea 
vice privantur iure eligendi aut postulandi, nisi pro- 
bent se a mittenda postulatione iusto detentos fuisse 
impedimento. 

§ 3. Per postulationem nullum ius postulato acqui- 
ritur et Superiori licet eandem repellere. 

§ 4. Praesentatam Superiori postulationem electo- 
res revocare non possunt, nisi Superiore consentiente. 



Can. 182 

a 

§ i. Reiecta a Superiore postulatione, ius eligendi 
ad collegium redit, nisi electores scienter ilium postula- 



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verint qui tali detinetur impedimento in quo nequeat 
aut non soleat dispensari ; tunc cnim provisio ad Supe- 
riorem pertinet 

§ a. Quod si postulatio admissa i ucrit, id cignifice- 
tur postulato, qui rcsponderc debet ad normam can. 
175. 

§ 3. Si earn acceptet, plenum ius in officio eidem 
atatim acquiritur. 

These four canons treat of what is called population, 
i. e. t a petition directed to the competent superior or dig- 
nitary." ■ This is styled postulatio solemnis or proper, 
to distinguish it from simple postulation, which, according 
to all authors, takes place when an inferior, say a religious 
or clergyman of another diocese, is to be elected to a 
higher office in a monastery or diocese not his own. We 
arc not concerned so much about the bishops of our coun- 
try, as about religious communities, although it is evident 
that a bishop of one diocese should be postulated, not 
elected, for another diocese, because, as the authors say, a 
spiritual tie between the bishop and his diocese induces a 
mystic marriage, which can be dissolved only by the 
Roman Pontiff. 09 But this is not the case with a religious, 
who is, for instance, elected abbot or superior of another 
monastery, or even bishop of a diocese. In the first case, 
viz., if he is elected to another monastery than that of his 
profession, he needs only the permission of his immediate 
superior and must be of the same religious order. If he 
is elected bishop of a diocese, he needs no permission but 
that of his superior, because it is he who is entitled to 
give permission to leave the monastery. 100 Hence there 

MEnjel, J, 3, n. i. 100 Cc. »7, 3*. 6 m , I, «; e. i, 

90 C, 4, X. I, 7, de translation* Clem. I, 31 * relisioui not abbot. 
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CANON 179 151 

is not the faintest idea of postulation in the proper sense 
to be perceived in the Decretals. Such a religious, if he is 
endowed with the necessary permission either before 
(conditionally) or after election is simply elected, not 
postulated. 

But what about an abbas regiminis ac benedictusf May 
he be elected or must he be postulated if called to govern 
another monastery? Some authors 101 insist vehemently 
upon the spiritual marriage between an abbot and his 
monastery and maintain that in such a case postulation 
is required. However, the text quoted in 6° does not 
favor that opinion, and the sententia communis is against 
it. 1M Neither can we see much difference between per- 
petual and temporary abbots as to the spiritual relation 
between superior and monastery or understand how the 
blessing contributes to the spiritual tie. Hence, as long 
as no better reasons are brought forward, we cling to the 
old law and to the sententia communis which tells us that 
abbots can be elected in the strict sense. 

Postulation in the proper sense is required if the person 
elected suffers from an ecclesiastical impediment, for in- 
stance, of age or lack of the necessary number of years 
in the order, 108 or illegitimate birth. In such cases the 
competent superior to be asked for a dispensation is the 
Apostolic See, unless the necessary faculty has been im- 
parted to the superior general of an order or to an 
Apostolic legate. 104 

The next canon (180) states the requisites of postula- 
tion. The first is that an absolute majority of the votes 






101 Molitor, Religion Juris Capita 103 Cf. can. 504; an. 507. 3 3, 

Sttrcto, 1909, p. 450. adroit* po»tul*tion only in cxtraor- 

io» Thus Paiscrini, Dt EUctiont, dinary case*, but insinuates noth. 

c. 24. n. 38; Engcl, I. 5. n. o; Reif- ing as to the necessity of poitu- 

fenstuel, I, s § n. 6; Werns, /. c, II, lating abbots, 

n. 394! Aictaner, I 8j, a. 10* C jS, X, 6*, I, «. 



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cast is required for postulation in general. However, if 
a portion of the electors should wish to elect, e. g., a per- 
son without an impediment, while another prefers a can- 
didate with an impediment, the postulantes must form 
two-thirds of the electoral college, 1 * and the formula used 
should simply be, " ego postulo" not " eligo et postulo" 
because such a formula is uncertain. ,oa The Code, how- 
ever, admits the term " eligo vel postulo " in case the can- 
didate suffers from no canonical impediment. 

Canon 181 mentions the time within which postulation 
must be presented to the superior and the effects which it 
produces. As to the former the Code is explicit. Con- 
cerning the latter, it must be remembered that the admis- 
sion of postulation is a mere favor on the part of the 
superior, who, therefore, if he is supreme (i.e., the 
Sovereign Pontiff) needs to give no reason for rejecting 
the postulation, whereas an inferior does. This is pre- 
cisely what § 3 says. It follows that mere postulation, 
until fully admitted, creates no right whatever to the 
office, because, as stated, the admission of postula- 
tion is a favor. 107 Another consequence is that postula- 
tion depends upon the admission of the superior and 
creates no right for the postulates, but consists in this that 
postulants may change their mind as long as postula- 
tion is not as yet in the hands of the superior. 108 But 
once it has reached the superior, postulation can no longer 
be changed, lest the superior would be derided. Of 
course, if the superior consents to a change, postulation 
may be changed or turned into election. 

The last canon (182) speaks of rejection and admission 



105 c. 40, X, I, 6. 

ioo C un. 6°, I, 5. 

107 Rciffenituel (I, S, n - ?*) ia 

inclined, but certainly not logically 
or canonicallj, to hold that there is 



an obligation or admitting postula- 
tion if the public welfare or utility 
are at italte. 

108 C. 4, X, I. 5; Engel A. *.. 
xx. 4. 



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CANON 179 153 

of postulation. If postulation is rejected, for whatever 
reason, the electors regain their right of again electing 
or postulating. However, if they have knowingly postu- 
lated one afflicted with a canonically indispensable im- 
pediment, the postulants have, for the time being (not for 
future elections) forfeited the right of election, and the 
superior to whom the postulation was directed is free to 
appoint a person of his own choice. 100 Admission 0/ 
postulation creates the same right as election and con- 
firmation together, 1. e., admission produces a ius in re, 
provided the postulates gives his consent within eight days 
from the date of the notice received of the admitted postu- 
lation. The acceptance must be intimated to the postu- 
lants as well as to the superior who admitted the postula- 
tion, although the right to the office or prelacy takes full 
effect from the moment one accepts. Hence, what- 
ever pertains to administration and jurisdiction he may 
now perform, but if consecration or benediction is needed, 
he cannot exercise pontifical rights. 

A last question to be solved concerns titular bishops. 
Must they be postulated ? The Decretals 110 seem to favor 
the assumption that, although they have no flock and no 
clergy, such bishops are bound to their titular church, and 
hence need a special dispensation to transfer them to a 
residential cathedral church. It follows that titular 
bishops cannot properly be elected, but must be postu- 
lated. This, however, must and cannot be applied to titu- 
lar abbots, much less to such as enjoy only the privilege 
of pontificals. 

10» Cc i-3, X, L 5. UOCf. Reiffenttuel, I f 5, n. 40 ff. 



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CHAPTER II 
loss of ecclesiastical offices 

Can. 183 

§ z. Amittitur officium ecclesiasticum renuntia- 
tione, privatione, amotione, translations lapsu tem- 
poria pracfinitL 

§2. Resoluto quovis modo iurc Superioris a quo 
fuerat concessum, officium ecclesiasticum non amitti- 
tur, nisi lex aliud caveat aut nisi in concessione habea- 
tur clausula: ad beneplacitum nostrum, vel alia 
aequipollcns. 

An ecclesiastical office is lost by resignation, privation, 
removal, transfer and lapse of time. 

Although the superior who has made the appointment 
goes out of office, the appointee does not lose his office, 
unless otherwise provided by law or unless the grant 
was made with the clause : " ad beneplacitum nostrum " 
or a similar one. 

After the legislator has stated how an office is ac- 
quired, either by free appointment or election, he now 
proceeds to show how it may be lost. In § 1 he com- 
pletely (laxative) enumerates the ways by which an office 
may be lost. In § 2 he removes, as it were, a doubt con- 
cerning the tenure of office, as if it ceased in conse- 
quence of the deposition or resignation of the grantor. 
This, the Code says, is the case only (a) if the office was 
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CANON 184 155 

to confer it "ad beneplacitum nostrum," or "durante 
nostro pontificate" or (b) if the law itself states that the 
office ceases with the superior's authority ; thus, e. g., the 
Roman Congregations and tribunals enjoy only a limited 
power during the vacancy of the Holy See, 1 the juris- 
diction of the vicar-general ceases with the cessation of 
his Ordinary's office/ etc. Otherwise an office is sup- 
posed to be given permanently or not to be revoked by 
the cessation of the grantor's office, e. g., that of legate.* 
After stating this general principle, the Code treats of the 
several ways in which an office may be lost. 



RESIGNATION 

D 

Can. 184 

Quisque sui compos potest officio ecclesiastico 
iusta de causa renuntiare, nisi speciali prohibitions 
renuntiatio sit ipsi interdicts. 



Can. 185 

Renuntiatio ex metu gravi, iniuste incusso, dolo 
aut errore substantial! vel simoniace facta, irrita est 
ipso hire. 

Can. 186 

Renuntiatio, ut valida sit, fieri debet a renuntiante 
aut scripto aut oretenus coram duobus testibus aut 
etiam per procuratorem speciali mandato munitum; 
et scriptum renuntiationis documentum in Curia de- 
ponatur. 

These three canons determine the objective requisites 
of resignation. 

1 Can. «4>; Pius X, " Vacant e « Can. jft. 

Sedt ApottolUa." a C. 1, 6*, I, 15. 



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156 ECCLESIASTICAL PERSONS 

The person who resigns must be in full possession of 
his mental faculties — compos sui — i.e., he must be 
able to perform a human act. Besides there must be a 
reason for resigning, else many might leave their charges 

in 

and disturbance ensue. The valid reasons for resigning 
an office are stated in the Decretals * as well as in the 
Constitution of Pius V, "Quanta Ecclesia," April 1, 
1568. They are as follows : 8 

Advanced age, which may vary and should be esti- 
mated according to prudent judgment. 

Sickness, bodily disease and corporal deformity which 
prevent one from securely, decently, and satisfactorily 
performing the duties connected with the pastoral office, 
e.g., paralysis, gout, epilepsy, etc. 

Consciousness of a crime and censure with one's repu- 
tation at stake. 

Deadly or lasting enmities between a pastor and a large 
part of his flock; to which category also scandal, even 
without fault, may be referred. 

Receiving another office incompatible with the one al- 
ready possessed. 

Finally, entrance and profession in a religious order.* 

These are the reasons admitted by law for resigning 
an office. Though some authors maintain that said De- 
cretals applied only to bishops and that the Constitution 
of Pius V was not everywhere received, 7 the Code by 
requiring in general some just reason, certainly intends 
to apply that enactment to each and every office to be 

4C. io. X, I, 9, of which the B Cf . Barbosa, Ius Ecct. Univ., 

summary repeats them in the fol- 1. Ill, c. 15, nn. 99 ff (ed. Lugd., 

lowing verse: 1660, II, 279 ?•)• 

" Dwbilis, ignarus, malt consdui, « Bcncd. XIV, "Ex quo," Jon. :.;, 

irregularis. 1747 (Hull.. Frati. II, 156 ff.). 

qutm mala plebs adit, dans scondala t Engel, I, 9, n. 6. 
ctdtf$ potest." 



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CANON 186 157 

resigned But it must be added that one or the other of 
the reasons named would suffice. 

A novice is prevented by law from resigning an office 
which he held before entering religion. 8 

The person who resigns must be entirely free. Hence 
any grievous fear inflicted by one who has no right to 
bring pressure upon an office-holder, would render the 
resignation void. 9 This does not, of course, apply to 
the fear threatened by the legitimate superior, e.g., a 
bishop who has a reason for forcing a clergyman to re- 
sign. 

Physical violence, especially if exercised by laymen, 
would invalidate a resignation. 10 The same holds good of 
fraud or error, e. g., the promise of a pension or sum of 
money, or a fraudulent description of conditions which 
supposedly exist in a parish, as also any simoniacal pact, 
either real or verbal. All these would render a resigna- 
tion invalid ipso jure. 11 

Can. 186 establishes the form in which resignation 
must be made ; vis., either in writing or verbally in the 
presence of two witnesses. This is a very reasonable 
rule, for it not only safeguards liberty but also prevents 
litigation. 

If the resignation is handed in by a procurator fur- 
nished with a special mandate, he must observe all the 
conditions of the mandate, and besides, we believe, must 
obey the rules established in this canon, vis., submit 
the resignation in writing or bring two witnesses. As 
long as the mandate is not expressly revoked and the 
repeal received by the procurator, he may proceed with 
the resignation. 12 The procurator may be a layman. 1 * 



8 Can. 568. Aug. 29, 1741 (Hull., Pratf, I, 

»C. 5, X, I. 9; c. 41 3t, I, 40. 98 f-), c 4, X, I, 35; c. a, X, V, 3. 

30 C. 2, X, I, 40. 11 C. un. Clem. I, 4- 

llBcned. XIV, "In tublimi,'' i» C. 1, 6\ I, 19. dt prccunt; 



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Can. 187 

§ 1. Renuntiatio generating ut valeat, ei fieri de- 
bet a quo est acceptanda, vel v si acceptatione non 
egeat, a quo clericus officium accepit vel qui eiusdem 
locum tenet. 

§ 2. Quare si officium per confirmationem, admis- 
sionem vel institutionem collatum fuerit, renuntiatio 
fieri debet Superior! ad quern de iure ordinario confir- 
matio, admissio vel institutio spectat. 

Resignation being a voluntary act, which must be ac- 
cepted by a competent superior, requires that it be pre- 
sented to that superior, who is the real grantor of the 
office. Note, however, that, although acceptance is said 
to be an essential part of resignation, there are cases in 
which it is not required. Thus the Roman Pontiff may 
abdicate without the consent of the College of Cardi- 
nals. 14 Besides any one may resign an office to which he 
has only the ius ad rem, e. g., to which he has been elected 
but not yet ratified. Furthermore if two contend for an 
office, one may waive the claim; and, lastly, a clergyman 
who is not a bishop may resign in order to enter a religious 
order. 18 

In all those cases in which acceptance is required, the 
resignation must be presented to the one who has con- 
ferred the office or to his representative (successor). 
Hence bishops (and abbots) must present their resigna- 
tion to the Pope. 

Minor offices are resigned into the hands of the bishop 
or his coadjutor, if the latter has full power, 18 of the 



Barbosa, Jus Eccl. Univ., 1. Ill, n. IB Baibosa, /. c. III, n. 5 f.; 

1st f. Reiffenstuel, I, 9, n 16 f. 

14 C. Z, 6% I, 7. *• Barboia, I. c, o. 11. 



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CANON 188 159 

vicar-capitular," but not of the vicar-general unless he 
has a special mandate. 18 

§ 2 follows out the principle laid down in the preced- 
ing paragraph ; for the one who actually confers the bene- 
fice is the one who ratifies the election, who admits postu- 
lation, and who confers the office. Hence neither the 
electors nor the postulantes, nor the lay or ecclesiastical 
patron who presents a candidate for an office, have the 
power to accept his resignation. 1 * 

Besides express or explicit resignation, both the old 
and the new law admit also a 



TACIT RESIGNATION, 

Of 

which is brought about and signified by a fact, especially 
one upon which the law itself has decreed the loss of an 
ecclesiastical office. 

Can. 188 

Ob tacitam renuntiationem ab ipso lure adrnissam 
quaelibet officia vacant ipso facto et sine ulla declara- 
tion, si clericus: 

i.° Professionem religiosam emiserit, salvo, circa 
bcncficia, praescripto can. 584; 

a.° Intra ternpus utile iure statutum vel, defi- 
ciente iure, ab Ordinario determinatum, de officio pro- 
visus illud adire neglexerit; 

3. Aliud officium ecclesiasticum cum priore incom- 
patible acceptaverit et eiusdem pacificam posses- 
sionem obtinuerit; 

4. A fide catholica publice defecerit; 

5. Mat rimo niurn, etiam civile tantum, ut aiunt, 
contraxerit; 

it Can. 455, I a. laBaiboai, /. c, n. ia 

IB C£. can. 455. 1 13 Barbota, /. c. 



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6.° Contra praescriptum can. 141, § 1 militiae 

saeculari nomen sponte dederit; 

7.° Habit urn ecclesiasticum propria a uc tor it ate 
sine iusta causa deposuerit, nee ilium, ab Ordinario 
monitus, intra mensem a monitione recepta resurn- 
pserit; 

8.° Residentiam, qua tenetur, illegitime deserue- 
rit et receptae Ordinarii monitioni, legitimo impedi- 
mento non detentus, intra congruum tempus ab Ordi- 
nario praefinitum, nee paruerit nee respondent 

This canon presumes resignation, to which it applies 
the effect which certain facts are supposed to produce 
under the law. This effect is vacancy of the office held, 
whether adduced by privation, as punishment, 80 or simply 
due to the incompatibility of certain offices with the newly 
chosen state of life or other offices. Hence 

(1) By religious profession (even simple) a man for- 
feits all parochial offices within one year from the date 
of said profession, and all other offices 21 within three 
years. 

(2) The tempus utile within which the bishop must go 
to his diocese is four months from the date of confirma- 
tion ; 22 the parish priest has to commence his administra- 
tion within the time prescribed by the Ordinary. Note 
the phrase " tempus utile," which implies that a legitimate 
impediment or ignorance of the date fixed for taking 
hold of the office would excuse. 

c 

(3) What incompatible offices are was said above; by 
the very acceptance of one such office the others become 
vacant. 28 



to Really, it would be privation, 6°, I, 6. 
but the Code presumes resignation za Can. 156; c. 54, X, I, 6; e. 3, 

ipso faeio. 6*, I, 16; Trid., Sew. 7, e. 4; Sew. 

Si Can. 584; c. 4. 6°, III, 14. «4. c 17, Dt R*f. 

MCin. 333; can. 238, J a; c. 14. 



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CANON 189 161 

(4) Defection from the Catholic faith, if public, de- 
prives one of all ecclesiastical offices he may hold ; ■* not, 
however, mere schism, if unconnected with heresy, 

(5) Marriage, if contracted by a public act, either 
validly by such as are in minor orders only, or attempted 
by clerics constituted in higher orders, is tantamount to 
giving up office. 28 Hence from the very moment a mar- 
riage is either contracted or attempted, the offices held 
by a clergyman would be vacant, and restitution of the 
revenues derived therefrom would begin from the mo- 
ment of the marriage. 

(6) Enlisting in the army has been touched above. 86 

(7) Doffing the ecclesiastical garb is tantamount to 
resignation if ostentatious and scandalous and connected 
with contumacy towards the Ordinary. 

(8) As to residence, the necessary explanations are 
given under the respective canons. 27 We only repeat 
that these cases, as set forth by our canon, do not really 
imply a resignation, but that the law supposes and pre- 
sumes resignation, which therefore is an improper re- 
nunciation or legally presumed resignation. 

Can. 189 

§ 1. Superiores sine iusta et proportionata causa 
renuntiationes ne acceptent. 

§ 2. Renuntiationem Ordinarius loci intra mensem 
vel adrnittat vel reiiciat- 



Can. 190 
§ 1. Officium, renuntiatione legitime facta et acce- 

f* C. 9, X, V, 7. 2« Can, 141. 

88 C. a, Diit 28; cc. 10, 13, Diit. I? Con. 143 (in general); can. 

]a; cc 1, 3* 5. X, III, 3. 338 (bishops) ; can. 465 (pastora). 



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i62 ECCLESIASTICAL PERSONS 

ptata, vacat postquam renuntianti significata est ac- 
ceptatio. 

§ 2. Rcnuntians in officio pcrmaneat donee dc Su- 
perioris acceptatione certum nuntium acceperit 

Can. 191 

I § 1. Semel legitime facta renuntiationc, non datur 
amplius poenitentiae locus, licet renuntians possit offi- 
cium ex alio titulo consequi. 

§2. Acceptata renuntiatio tempestive nota fiat iis 
qui aliquod ius in officii provisionem habent. 



The legislator admonishes (but under no invalidating 
clause) superiors not to accept a resignation without just 
and proportionate reason, as insisted upon by Pius V." 
Besides, in order not to protract vacancies, acceptance 
must be notified within one month. With the same end 
in view Gregory XIII, by his Constitution " Humano vix 
ittdicio" (Jan. 5, 1584), had prescribed that all resigna- 
tions should be published within six or nine months. 
This Constitution is modified by the Code, which requires 
not publication, but notification, to be made within one 
month. 

The effect of the notified acceptance of a resignation 
consists in the vacancy of the office resigned. 89 There- 
fore, as soon as the resignans has received official notice 
that his resignation is accepted, he is free from all obli- 
gations connected with the office, but also deprived of all 
rights, material and spiritual, pertaining thereto. 80 

The last canon on resignation states that if a resigna- 
tion has once been accepted, it is not rendered invalid by 

a 
c 

siCc. x ( s, 9, xo, X, I, 9; M Btrboia, Jus Eccl. Univ., Ill, 

"Quant* BecUsia," 1568, (3. c. 15, no. 1480. 

a» Co. 3i im, X. I, ft ft * 6". I. 3- 



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CANON 192 163 

• 

regret or a change of mind on the part of the resignans, 
since such a step is supposed to be taken with due delib- 
eration and for adequate reasons. 81 However, if a man 
who has resigned an office is again presented or elected 
or appointed to the same, the presentation, election, ap- 
pointment or investment would constitute a new title. 
In that case, however, precedence and other privileges 
would date only from the second appointment.' 2 Thus, 
e. g. f a prelate who resigned his office and obtained it 
anew would hold rank of seniority only from the date of 
the second appointment, unless the mere order would be 
decisive." 

DEPRIVATION OF OFFICE 



Q 



Can. 192 
z 

§ 1. Privatio officii incuxritur sivc ipso iure, sivc ex 

facto legitimi Superioris. 

§ a. Si agatur de officio inamovibili, Ordinarius 
nequit clericum eodem privare, nisi mediante processu 
ad normam iuris. 

§ 3. Si de amovibili, privatio decerni ab Ordinario 
potest ex qualibet iusta causa, prudenti cius arbitrio, 
ctiam citra delictum, naturali aequitate servata, sed 
certum procedendo modum sequi minime tenetur, salvo 
canonum praescripto circa paroecias amovibiles; pri- 
vatio tamen effectum non habet, nisi postquam fuerit 
a Superiore intimata; et ab Ordinarii decreto datur 
recursus ad Sedem Apostolicam, scd in devolutivo 
tantum. 



Deprivation is incurred either by law or by the decision 
of a legitimate superior. A cleric who holds an irre- 

11 Cc. 3, 6, 12, X, fj 9. saThis agrees with St. Benedict '• 

II Kcificnituel, 1, 9, n. 4*- Rule, ch. 39- 



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164 ECCLESIASTICAL PERSONS 

movable office can be deprived of it only upon trial insti- 
tuted according to law. One holding a removable office 
may be deprived of it by his Ordinary without having 
committed a crime, for any just reason. No special pro- 
cedure is required in such cases unless the cleric is a re- 
movable pastor, when the Ordinary has to comply with 
the canonical norms. Deprivation takes effect only after 
the subject has been notified by his superior. From the 
Ordinary's decision recourse may be had to the Apostolic 
See, but in devolutivo only. 

Deprivation is a penalty, and hence the present canon 
really belongs to the penal law. However, since the leg- 
islator enumerated deprivation among the modes of los- 
ing an office in can. 183, § 1, it was necessary to deal with 
the subject here. 

§ 1 states how deprivation is brought about, vis., by 
law or by a judicial sentence. The law states the reasons 
for deprivation partly under the heading of tacit resig- 
nation (can. 188), partly in the fifth book. 84 There, too, 
it is stated when the judge may decree privation, and 
that he may inflict this penalty ( for it is a vindictive pen- 
alty), for weighty reasons if the law is silent. 

§ 2 and § 3 distinguish between irremovable and re- 
movable officials, and say that the former may not be 
deposed without an ecclesiastical trial (as described in 
Book IV). One holding a removable office is more easily 
deprived, unless that office is a pastorate, in which case 
the regulations laid down in the Code must be strictly 
followed. 80 

Of other offices one may be deprived, (a) even though 
he has committed no crime, (b) for a just reason, ac- 
cording to the prudent judgment of the Ordinary, who, 

at Can. 229&B. H Cf. cc 3157-2161. 



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CANON 192 165 

however, (c) must follow the dictates of equity, although 
(d) he is not bound by any legal procedure. 

As to (a), it was once generally held that only a crime 
(delictum publicum) could deprive a holder of his office ; 
however, since the " welfare of the Church " came to be 
regarded as the " supreme law," M the ancient rigor was 
relaxed and (b) any reason that satisfied the Ordinary 
was deemed sufficient to justify removal. 

Which would be a sufficient reason? Comparing our 
Code 87 with the well-known decree " Maxima cura " 
(1910), we find that some of the reasons stated in the 
latter have been omitted. They are: serious neglect of 
pastoral duties, after one or two admonitions and in mat- 
ters of importance, such as sick-calls, catechism class and 
preaching, the law of residence ; disobedience to the in- 
junctions of the Ordinary, after several admonitions, and 
in important matters, such as excessive familiarity with 
a certain person or family, cleanliness of the house of 
God, moderation in the exaction of taxes, etc. (pew-rent, 
collection). These reasons cover a large field and may 
enter into the Ordinary's judgment. Of course, it is 
evident that the other reasons stated in can. 2147, §2 
are also sufficient to remove an office holder. 

Having, then, one of these reasons, the bishop is bound 
only by the dictates of natural equity, which means that 
merit and previous services to the diocese should be taken 
into consideration and some other office is available; for 
as long as a priest does not make himself culpably un- 
worthy, he remains incardinated. Lastly, (d) in order 
to proceed to the act of removal the Ordinary need not 
employ any legal procedure (strepitus iudicii). After he 
has duly intimated his decision to the clergyman whom 

US. C. Constat, "Mmxima IT. 636). 






cura." Ausr. ao f ipio. (A. Ap. S., 37 Can. 2147, 1 2. 



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166 ECCLESIASTICAL PERSONS 

a 

he wishes to remove, the latter may have recourse to the 

Holy Sec, — if we mistake not to the S. C. Concilii, — 
but the effect of an appeal will be devolutive only, that is 
to say, the decision of the Ordinary holds good and the 
one deprived of office is really deposed and must conduct 
himself accordingly, i. e., neither take any part in the 
management of his former office nor cause trouble in the 
congregation or community, until a decision is given 
by the Roman Court. 

Here the important question arises whether our so- 
called removable rectors in the U. S. fall under the cate- 
gory of those who must be removed according to cc. 
2157-61, or whether they may be removed for the rea- 
sons described above and without trial. We premise 
that according to can. 454, § 3, all pastors ought to be 
irremovable, unless the bishop, compelled by special cir- 
cumstances, deems it necessary to retain removable pas- 
tors. It is left to the prudent judgment of the Ordinary, 
after having heard his consultors, to determine the char- 
acter of the pastorate in his diocese. This premised, the 
answer of the S. C. Consist of June 28, 1915, to the 
bishops of the United States 88 must decide our case. 
This answer is that removable rectors in the U. S. may 
be removed according to the good pleasure of the bishop, 
but that the latter, under the decrees of the Second 
Plenary Council of Baltimore, should not make use of 
this right except for weighty reasons and with due re- 
gard to the merits of his priests. The reason given for 
this decision is that " sahis animarum supremo lex est" 
and that, according to the Ilnd and Illrd Councils of 
Baltimore removable rectors are not equal to the des- 

servants of France, but must be regarded as vicars of 

< 

8B Card, CiaBparri alleges this c is ion, but the date needs correc- 

tion. 



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CANON 193 167 

their Ordinaries and hence arc amovibiles ad nutwn. t% 

transfers 
Can. 193 

§ x. Translatio ab uno ad aliud officium ecclesiasti- 
cum ab eo tantum perflci potest, qui ius habet turn ac- 
ceptance renuntiationem, turn removendi a primo offi- 
cio et promovendi ad alterum. 

§ 2. Ad translationem, si dc consensu clerici fiat, 
quaelibet iusta causa sufficit; si invito clerico, eadem 
fere causa requiritur idemque procedendi modus ac 
pro privatione, firmo praescripto can. 2162-4167, quod 
ad translationem attinet parochorum. 

Can. 194 

§ 1. In translatio iie prius officium vacat cum cle- 
ricus alterius possessionem canonice capit, nisi aliud 
a iure cautum sit vel a legitime Superiore prae- 
scriptum. 

§ 2. Reditus prions officii translatus percipit, do- 
nee aliud occupaverit. 

h 

X 

Can. 195 

Qui clericum ad officium elegerunt vel postulave- 
runt aut praesentaverunt, nequeunt eundem officio 
privare aut ab eo revocare seu amovere aut ad aliud 
transferre. 



■ 



By transfer is understood an exchange of offices made 
with the consent of the legitimate superior. The trans- 
fer of bishops is dealt with in can. 430. Canons 193 sqq. 
treat of transfers in general. First mention is made of 

*9A. AP. S., 1915 (VII), p. 373ff- 



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168 ECCLESIASTICAL PERSONS 

the legitimate superior, who is entitled to transfer one 
from one office to another. In case of episcopal transfers 
the legitimate superior is the Holy See. 40 Formerly such 
transfers were made at synods. 41 The inferior clergy 
was transferred with the consent of the bishop. 48 The 
new Code requires that the superior who negotiates the 
transfer must enjoy the right of accepting resignations 
as well as the right of removal and promotion. Hence 
it is evident that, concerning minor offices, it is the bishop 
who is entitled to make transfers, not those who have the 
right of presentation (patroni) or election. 

However, transfers, like resignations, should not be 
made without reason, because, unless there is a promo- 
tion to a better office, transfers are generally looked upon 
as odious and degrading. Hence § 2 justly requires a 
reason, but also distinguishes between voluntary and in- 
voluntary transfers. The former may be made at the 
express wish of the office-holder. For instance, a pastor 
advanced in years, or in poor health, or beset by serious 
troubles, may ask for a transfer to another parish, or 
even to the post of assistant. 

Here the question arises whether parish priests may 
exchange places. The Code, 48 as far as we can see, 
touches that question only in connection with the ex- 
change of benefices, but does not exclude an exchange of 
offices. Hence if made for reasons of utility or neces- 
sity, and with the consent of the Ordinary, such an ex- 
change would be lawful. 

An involuntary transfer, being odious and generally 
disgraceful, 44 not only requires reasons acknowledged by 



p 



40 C. 34, c. 7. 1. i (Pseudo- 42 /bid. 
Anterua); cc 1-4, X, I, 7. 43 Can. 1487 f. 

41 C. 37 (Cartha*. IV), C. 37. Q- 44 Cf Smith, Elements I, n. 394- 



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CANON 194 169 

law, but also the legal procedure prescribed in the IVth 
Book." 

Canon 194. mentions the date of vacancy, which com- 
mences from the time the other office is canonically taken 
possession of. The reason is that from the moment a 
priest holds one office, he is not supposed to hold an- 
other. 4 * Hence the possessor of the former office is 
entitled to the revenues of the latter, until he has been 
actually introduced into the new office (corporalis itntnis- 
sio). 

What canon 195 states is evident not only from the 
fact that patrons and electors do not actually confer the 
office, but also from can. 193, which supplements the 
latter canon. 47 This canon doubtless strikes at a custom 
which is not in keeping with ecclesiastical law, and there- 
fore not to be imitated elsewhere, though in vogue, as we 
know, in Switzerland, where parishes in certain cantons 
claim the right to reelect their pastors or vote them out 
of office. The canon, though admitting the right of elec- 
tion, because this is not tantamount to conferring the 
office, justly rejects any interference with the removal 
or transfer of ecclesiastical office-holders. 

«Cm. 3161-2167 i cf. c. 5, X, « C. *8, X, III, 5; c. a8, 6% III, 

II. 10. 4- 

41 C. 4, X, III, 38. 



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TITLE V 

ORDINARY AND DELEGATED POWER 

Can. 196 

Potestas iurisdictionis seu regiminis quae ex divina 
institutionc est in Ecclesia, alia est fori externi, alia 
fori intcrni, seu conscientiac, sive sacramentalis sive 

extra-sacramentalis. 



The legislator, after having stated the modes and 
means by which an office is acquired or lost, now turns 
to the natural foundation and end of every office : the 
power of jurisdiction. This, he says, is by divine institu- 
tion twofold. For the Church, being a perfect society 
intended for the salvation of souls, must exercise (cfr. 
can. 100) a jurisdiction which chiefly looks to the wel- 
fare of society as such, and at the same time must wield 
a power which directly touches the realm of conscience. 
Thus the Apostles were endowed with spiritual power 
from above. 1 They as well as their successors were 
given the threefold power of making laws, deciding cases, 
and applying punishment. At the same time they also 
received the power of binding and loosing, 2 which is ex- 
ercised in the Sacrament of Penance. Moreover, St. 
Paul solved cases outside a strictly speaking private or 
internal tribunal, yet touching the conscience of individu- 
als, as in the case of the incestuous man of Corinth and 



1 Matt. a8, 18; cf. Pohle-Preu*. * M*tt. 16, 18; 18, 18; John to, 

Thg Sacramtnts, Vol. Ill, 1917. pp. 31. 
Iff. 

170 



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CANON* 197 171 

the two blasphemers. 8 In addition, cases not necessarily 
connected with sacramental absolution may occur and 
have always occurred, e. g., the need of dispensing from 
vows, occult irregularities and impediments, absolving 
from occult censures, etc. 4 This, then, is the range of 
ecclesiastical jurisdiction in foro externo and in foro in- 
ferno, which latter touches the conscience of individuals. 
The word jurisdiction is derived from ins dicendi, which 
means the right of taking cognizance of a case and decid- 
ing it according to law or equity. 

In general, jurisdiction may be said to be "a public 
faculty to rule or govern others." * This definition cov- 
ers both jurisdiction in foro externo and jurisdiction in 
foro interno, because, though the latter touches con- 
science, it is the public authority of the church which be- 
stows that power over the consciences of the faithful. 8 

ordinary jurisdiction 
Can. 197 

§ 1. Potestas iurisdictionis ordinaria ea est quae 
ipso iure adnexa est officio; delegata, quae commissa 
est personae. 

§ 2. Potestas ordinaria potest esse sive propria sive 
vicar ia. 

Can. 198 

§ 1. In iure nomine Ordinarii intelliguntur, nisi 
quia exprcssc cxcipiatur, praeter Romanum Pontifi- 

8 I Cor., 5, 5; I Tim. I, ao. Univ., 1746, I, p. ia, well says that 

4 Houix, De Principiis Juris the faculties o! preaching and ab* 
Canonici, 185*, p. 534. solving belong to the court of 

5 Rciffcnstuel, I, jq, n. 3 (ac- conscience, hut the power of grant- 
cording to Pirhing) : " Jurisdictio ins them belongs to the forum ex- 
est potestas publico, circa ahorum ternum, because given for the pub- 
regimen seu guber nation em." lie welfare. 

Berardi, Comment, in Jus Can, 



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172 ECCLESIASTICAL PERSONS 

cem, pro suo quisquc tcrritorio Episcopus residentialis. 
Abbas vel Praelatus nullius corumque Vicarius Gene- 
ralis, Administrator, Vicarius et Praef ectus Apostoli- 
ous, itemque ii qui pracdictis dcficicntibus interim ex 
iuris praescripto aut ex probatis constitutionibus sue- 
cedunt in regimine, pro suis vero subditis Superiores 
rnaiores in religionibus clericalibus exemptis. 

§ 2. Nomine autem Ordinarii loci seu locorum ve- 
niunt omnes recensiti, exceptis Superioribus rcligiosis. 

The term ordinary in the Decretals 7 is an attribute 
of judges and means as much as official. Even arch- 
deacons were said to enjoy ordinary jurisdiction in their 
respective districts. 8 But it also meant 9 the free or un- 
hampered power of the bishops in their dioceses. Hence 
the term signifies a certain autonomy, but not com- 
plete independence. The root of that autonomy is 
the nature of the office; 10 wherefore our canon says 
that ordinary jurisdiction is attached to the office, not to 
the person ; it grows out of the office as the fruit grows on 
the tree. By law it is attached to the office, because either 
of divine or human law (to which latter also belong privi- 
leges and customs) 11 certain office-holders enjoy juris- 
diction in foro externo. Therefore, as soon as one is in 
full possession of an office, he has the power to exercise 
the jurisdiction appertaining to that office. 

However, there is a distinction made by the Code: — 
ordinary power may be either proper or vicarious (pro- 
pria vet vicaria). This somewhat modern distinction is 

not easily explained. Wernz says that jurisdiction 

■ 

7 C< . Tit. 31, lib. T . jurisdiction at possessed "ipsa «ur#, 

8 Thomas&in, P. I, 1. II, c. jo. non atieno btneftcic." 

o, 7. 11 Berardt, /. c, p. 19; Bouix, 

»C. i, X, I. 31. I c, p. 529. 

10 [.. 5, Dig. a, 1 define* ordinary 



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Canon 198 173 

proper is that which naturally follows the existence of 

Q 

the Church as a perfect society and is exercised by the 
Church in her own name, as in her own forum (ut in 
foro suo), e.g., excommunication and penalties, whereas 
vicarious jurisdiction is that exercised by the Church in 
virtue of a special divine commission and in foro Dei, 
e.g., to declare the word of God infallibly, to remit sin, 
grant indulgences, solve vows, oaths, etc. 12 We must 
confess that we were always under the impression that 
the objects enumerated under vicarious power belonged 
to the Church as her proper domain. Where is the 
bishop's jurisdiction proper, and where does his vicari- 
ous power commence? If the latter signifies the so- 
called iurisdictio mandate, which is a delegated power for 
all cases (ad umversiiatem causaruni)™ we have delega- 
tion proper, as can. 199, § 3 plainly states. However, it 
may be that vicarious refers to vicar. A vicar differs 
from a delegate, inasfar as he takes the place of the ordi- 
nary (judge) and forms one tribunal with him, whereas 
a delegate is a distinct juridical person and has his own 
tribunal. 14 Here we have a more tangible distinction. 
If this is the meaning of the canon, the vicar-general 
would enjoy vicarious jurisdiction, whilst the bishop, 
within his sphere and territory, has jurisdiction proper. 
To assume that a bishop has but a vicarious power, de- 
rived from the pope, whose vicar he is, would offend 
against the divine institution of the Church. 

The next canon (198) enumerates those who are com- 
prised by the name of Ordinaries. They are: all who 
rule or govern a diocese or ecclesiastical district tanta- 
mount to a diocese: residential bishops, prelates nullius 



D 



i- Ins Decretal., II, p. 7 (1 cd.) ; explanation. 
LAurenrius, Tnslitvt. Juris EccU, IS Heiffenrtue! I, 99, n. if. 

i903> P- 3&t i- 45. adopts the same 14 Rciffenrtuel, I. c, n. aS. 



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174 ECCLESIASTICAL PERSONS 

(sc. territorii), as well as their vicars-general; also 
Apostolic administrators, Apostolic vicars and prefects; 
the vicars-capitular or administrators during the vacancy 
of a see, be these such under the common law or accord- 
ing to approved constitutions ; 15 finally, the higher su- 
periors of exempt clerical orders of religious, •". e., the 
superior general, abbot primate, provincials and abbots, 
presidents as well as abbots of single exempt monasteries, 
and their legitimate locum tenentcs or representatives. 1 ' 
These latter, however, — except in cases where they are 
at the same time prcclati nullius — are not ordinarii loci, 

•a 

but simply Ordinaries. Hence, if a canon " says that a 
religious needs the permission of the Ordinarius, the 
superior of his community is understood ; but if the Or- 
dinarius loci is mentioned, the religious, though exempt, 
must obtain the permission from the diocesan bishop, 
e. g., in case of absence from a parish for some length of 
time." 



: 



DELEGATED JURISDICTION 

A delegated jurisdiction, according to can. 197, § i, is 
one which has been commissioned to a person. 18 This is 
the cause or raison d'etre of a juridiction which is not 
given by virtue of the office itself but accrues to a person 
by reason of a special commission which may be implied 
in the law or come directly from the competent authority 
(delegatio a lure, delegatio ab homine). Hence a dele- 
gated jurisdiction is not exercised in one's own name, but 
in the name and by commission of another. 



Can. 199 
§ 1. Qui iurisdictionis potestatem habet ordina- 
ls Can. 43a, 6 3- IS Can. 465. 

i« Can. 488, 8°. is Cf. S. C. P., Not. 8, 188a; 

it Cfr. can. 130, 1 3. S. O., Feb. ao, 1888. 



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CANON 199 175 

riam, potest earn alteri ex toto vel ex parte delegare, 
nisi aliud expresse iure caveatur. 

§ 2. Etiam potestas iurisdictionis ab Apostolica 
Scde dclegata subdelegaxi potest sive ad actum, sive 
etiam habitualiter, nisi electa fuerit industria perso- 
nae aut subdelegatio prohibita. 

§ 3. Potestas delegata ad universitatem negotio- 
rum ab eo qui infra Romanum Pontificcni habet ordi- 
nariam potcstatem, potest in singulis casibus subde- 
legari. 

§ 4. In aliis casibus potestas iurisdictionis delegata 
subdelegari potest tantummodo ex concessione ex- 
presse facta, sed articulum aliquem non iurisdictio- 
nalem etiam sine expressa commissione iudices dele- 
gate possunt subdelegare. 

§ 5. Nulla subdelegata potestas potest iterum sub- 
delegari, nisi id expresse concessum fuerit 

This canon treats of the relation of ordinary jurisdic- 
tion to delegation, and of the relation of the latter to sub- 
delegation. 

(1) The Pope may delegate his power of jurisdiction 
wholly or partially to another, except in certain matters. 
A bishop or Ordinary may also delegate his power to 
another, and our text is emphatic as to the extent of that 
delegation, stating that it may comprise the whole power 
(ex toto). Hence the former opinion of canonists, 20 
that the whole jurisdiction of a bishop could not be dele- 
gated to another, because this would be tantamount to 
abdication, can no longer be held. Neither are any 
special qualifications laid down for a delegate. It used to 
be held that a delegatus papae had to be an ecclesiastical 
dignitary, e. g., a canon of a cathedral chapter, a prior 

zoCf. Keifienatuel I, 29, n. 56; Santi-Leitner, I, 39, n. 7. 



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176 ECCLESIASTICAL PERSONS 

conventualis (but not a prior claustralis) ." Now, 
we believe, any Catholic priest in communion with the 
Holy See can be entrusted by the Pope with a delegation. 
The priestly character seems to be required, since the 
Code insists upon that in every instance, but we would 
not assert that the Sovereign Pontiff could not make an 
exception in favor of a cleric in minor orders, since it is 
acknowledged that he can delegate even laymen." 

(2) If the pope has chosen a delegate, either for a cer- 
tain case or for all cases that may arise, this delegate may 
subdelegate another ecclesiastic, 28 — a layman could not 
be admitted in the case of subdelegation, this being the 
exclusive privilege of the Sovereign Pontiff, — and endow 
him with the delegated power, either habitually (1. €., 
without limit as to time or person or matter) or for a cer- 
tain case. However, if the person delegated by the pope 
was chosen on account of qualities peculiar to himself and 
found in no one else, subdelegation is excluded. 
Whether such a personal choice was intended, must be 
gathered from the text of the document. As a rule, if 
the name of the person is placed first, and followed 
by that of the office or dignity, what canonists call Indus- 
trie personae is intended. The same holds if the writ 
says that the delegate must himself (at ipse, per \emei- 
ipsum) take cognizance of, and decide the case or cases 
for which he is appointed, or if the nature and circum- 
stances of a case are fully known only to him, or if the 
matter concerns persons in high position. 24 Sometimes 
a writ of delegation contains a clause expressly prohibit- 
ing subdelegation. 

§ 3 and § 4 mention delegates appointed by ecclesiastics 



SIC. 11, 6°, X,3; c. 1, Gem. I, a. " Cc. 3. 43, X I, 29; Santi- 

22 C. 23. Dist. 63; c. 4, X, III, 8. Leitncr, I, 29, n. 8. 
so C. 6a, X, II, 28. 



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CANON 200 177 

inferior to the pope. Whoever is delegated for any pur- 
pose by a cardinal, or metropolitan, or bishop, or other 
Ordinary must first of all examine the document by 
which he is delegated, to ascertain whether he is to expe- 
dite affairs generally (ad universitatem negotiorutn) or 
only a certain kind or number of cases. If he has what 
may be termed universal (delegated) jurisdiction (which 
may be the case, e. g., with coadjutor bishops), he may in 
turn subdelegate in particular cases, 25 for instance, one 
special matrimonial case, or the criminal case of a clergy- 
man. If, however, no universal (delegated) jurisdiction 
has been conferred on him, the delegate needs a special 
and an express commission to authorize him to subdele- 
gate others. Only incidental but not juridical acts, prop- 
erly so called, may be subdelegated ; thus, for instance, a 
delegate may, even without a special commission, entrust 
another clergyman with the reading or translation of 
documents if he needs help in that direction. But the 
summoning and hearing of witnesses, receiving of excep- 
tions, interlocutory sentence, etc., are juridical acts which 
the delegate may not subdelegate to another except with 
special permission. 88 

The last paragraph prohibits subdelegation by a sub- 
delegate, ne processus dctur in infinitum. 21 Even if the 
original delegans would expressly permit such a subdele- 
gation, it would not hold good in law. 



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interpretation of jurisdiction 
Can. 200 
§ 1. Potestas iurisdictionis ordinaria et ad univer- 

n 

IB There it no foundation for tbe 26 C. 37, X, I, 29; ReifTenstoel, 

distinction made by I'utxer (Com. I, 29, n. 64 f- 

in Fac. Ap„ p. 38 f.) between uni> « C. a8, X, I, 29: txontrorg 

versaiitaj and gemraiiltu causarum: matittose ncqutat. 
the Code excludes that. 



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sitatem negotiorum dclegata, late interprctanda est; 
alia quae! i bet stricte; cui tamen delegata potestas est, 
ea quoque intelliguntur concessa, sine quibus eadem 

cxerccri 11011 posset. 
§ 2. Ei, qui delegaturn se assent, incumbit onus 

probandae delegationis. 



Ordinary and universal (delegated) jurisdiction may 
be interpreted broadly; all others must be interpreted 
strictly; however, even in delegated jurisdiction all those 
faculties are included without which the exercise thereof 
would be impossible. 

Whoever claims to be delegated is obliged to prove the 
f fact. 

The difference between the two interpretations men- 
tioned in § 1 consists in this, that ordinary and universal 
jurisdiction is considered favorable, whereas the other is 
taken to be odious ; in other words, the broad interpreta- 
tion is based upon one's own power, whilst the strictly 
delegated power depends on the consent of another, 
which may not be presumed. Hence if an Ordinary has 
doubts concerning his own power, he may nevertheless 
use it. But strictly delegated power must be neither ex- 
tended nor restricted as to persons, number, species, or 
norm of procedure.* 8 

That one who pretends to be a delegate must show his 
credentials, follows from the fact that delegation is an 
accident, which may not be presumed, but must be 
proved." 



28 C. 31. X I. 29: c. i, ExtrftY. 29 Reiffenstuel. X. -9. n. ttt 

Comm. I, 3. 



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CANON 201 179 

extent of jurisdiction 

Can. 201 

§ x. Potcstas iuxisdictionis potest in solos subditos 
directe exerceri. 

§ 2. Judiciahs potcstas tarn ordinaria quam delc- 
gata exerceri nequit in proprium commodum aut extra 
territorium, salvis praescriptis can. 401, § 1, 881, § a 
et 1637. 

§ 3. Nisi aliud ex rerum natura aut ex iure constet, 
potestatem iurisdictionis voluntariam seu non-iudicia- 
lem quis exercere potest etiam in proprium commo- 
dum, aut extra territorium exsistens, aut in subditum 
e territorio absentem. 

The power of jurisdiction may be directly exercised 
only over subjects. Judicial power, ordinary as well as 
delegated, cannot as a rule be exercised for one's own 
benefit or outside of one's own territory- 
It is otherwise with voluntary or non-judicial juris- 
diction, which may be exercised in one's own favor out- 
side one's territory, and on subjects absent from home. 

As legislative power does not extend to such as are 
not subject to the community or society, 00 so judiciary 
power cannot be applied to those outside the jurisdiction 
of the judge. The limiting adverb "directly " in the text 
is important, especially for matrimonial cases. For al- 
though the Church does not judge those outside her own 
pale, she is entitled to make laws for, and judge, those 
who belong to her fold, and hence, while an impediment 
laid down by the Church may not directly bind an unbe- 
liever or non-baptized person, yet the Catholic party is 
bound by the law and judgment of the Church, and con$e- 

ao Cad. 12, 



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quently, marriage being a bilateral contract, it cannot 
take place until the obstacle is removed. 

The next two paragraphs suppose the distinction be- 
tween contentious and voluntary jurisdiction. The for- 
mer is exercised in judicial form even over such as do 
not seek the aid of the court (in nolentes, invitos), 
whereas the latter may be exercised without judiciary 
formalities, but only over persons who seek the benefit 
of jurisdiction of their own accord, e. g., absolution from 
censures, dispensation from irregularities and impedi- 
ments, etc. Contentious or judicial jurisdiction (e.g., 
litigation between two office-holders) cannot be exercised 
by a judge, ordinary or delegated, upon his own person, 
because no one can judge his own case. 81 This principle 
does not, however, apply to the Sovereign Pontiff, because 
"prima sedes a nemine judicature ** 

Laws being territorial, and no judge having a right 
outside the territory allotted to him, none can exercise 
jurisdiction outside his district. 33 However, the Code 
makes two exceptions: in favor of absolution 8 * and in 
favor of a judge who is expelled from his territory or 
forcibly prevented from exercising judiciary power. 85 

Voluntary jurisdiction, on the other hand, may be ex- 
ercised (a) in one's own favor; thus, e.g., ore who has 
received delegated power to dispense from fasting or 
abstinence may apply it to himself. Absolution from 
censures, however, if sacramental confession is required, 
must be applied by another, although a priest who has 
the faculty by delegation may subdelegate it to the priest 
who hears his confession, (b) The bishop may exercise 



81 L. un. Cod. Just, III, 5; c. 18, pune." 

X, II, 1. a* Can. 401, I 2; can. 88r, |2. 

82 Cf. 13, C 9, q. 3. 8* Can. 1637; — an example would 
as C. 2. 6". I. 2: "extra trrri- be Clemens August of Cologne 

torium ins dictnti non panbitur im- (1837). 



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CANON 202 18! 

his ordinary or delegated power over his own subjects, 
even if he is hie et nunc outside his diocese, for the law 



does not restrict his power in this respect. 8 * 



Clerics who study in a seminary or university situated 
outside of their home diocese must apply for any disoen- 
sation needed to their own Ordinaries. 



Can. 202 

§ 1. Actus potestatis iurisdictionis sive ordinariae 
sive delegatae collatae pro foro externo, valet quoque 
pro interno, non autem e converse 

§ 2. Potes tas collata pro foro interno cxerceri 
potest etiam in foro interno extra-sacramentali, nisi 
sacrarnentale exigatur. 

§ 3. Si forum, pro quo potestas data est, expressum 
non fuerit, potestas intelligitur concessa pro utroque 
foro, nisi ex ipsa rei natura aliud constet. 



This canon establishes the relation between the forum 
externum and the forum internum and hardly needs an 
explanation. Of the two fora the more intensive and ex- 
tensive is the forum externum; and hence, though one 
may be absolved from censure (e. g., on account of a 
mixed marriage contracted against the law) in the court 
of conscience, he must nevertheless conduct himself like 
one under censure until relieved of the latter by public 
absolution. On the other hand, one who has received 
public absolution must be considered as restored to full 
communion. r l hus, also, a marriage acknowledged to be 
null and void in foro interno cannot be so declared in foro 
externo unless external proofs are given. 8 ' 

§ 2 states that power given for use in the court of 

m Otherwise Puteer, /. c, p. 71 t. S» Putier, I. c, p. a8 f. 



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1&2 ECCLESIASTICAL PERSONS 

conscience may be exercised outside the sacrament of 
penance, although this is not the usual and generally pre- 
scribed mode. Thus, e.g., dispensation from secret im- 
pediments, vows, or irregularities may be applied outside 
the confessional if the party concerned shrinks from 
confession. 38 But in cases where a dispensation can be 
imparted by the confessor (regular) only, confession is 
required. 

duties of delegates 

Can. 203 

§ z. Delegatus qui sive circa res sive circa personas 
mandati sui fines execdit, nihil agit. 

§ 2. Hos tamen excessisse non intclligitur delega- 
tus, qui alio modo ac deleganti placuerit, ea ad quae 
delegatus est, peragit, nisi modus ipse fuerit a dcle- 
gante praescriptus tanquam conditio. 

A delegate who exceeds the limit of his mandate, either 
concerning objects or persons, acts invalidly. But a 
delegate does not transgress the limit if he exercises his 
power in a manner (modus) other than that which would 
please the delegons, unless the manner of exercising the 
faculties conferred has been prescribed by the delegans 
as a condition of validity. 

Can. 204 

§ 1. Quod quis Superiorem adit, inferiore praeter- 
misso, non idcirco voluntaria suspenditur inferioris 
potestas, sive haec ordinaria fuerit sive delegata. 

§2. Attamen rei ad Superiorem delatae ne se im- 
misceat inferior, nisi ex gravi urgentique causa; et hoc 
in casu statim Superiorem de re moneat. 

as ibid., p. 37 1- 



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CANON 204 183 

The voluntary jurisdiction, ordinary or delegated, of 
an inferior authority is by no means suspended by direct 
recourse to a superior. But if a case has been brought 
before a superior, the inferior authority shall not inter- 
fere, unless for a weighty and urgent reason, of which 
the superior must be promptly informed. 

Whoever acts as a delegate is supposed to have received 
a commission or mandate, which must be observed as to 
all its substantial injunctions. Our Code especially men- 
tions two limits: objects and persons. When the ob- 
ject or matter is mentioned expressly, e. g., a matrimonial 
case, the delegate has no power to decide other cases. 

■n 

In some countries there are special marriage courts, to 
whom no other cases are delegated. Again, when a cer- 
tain class of persons (e. g. t clerics, sisterhoods) is men- 
tioned in the mandate, the jurisdiction of the delegate 
cannot be extended to other classes. If exempt religious 
are expressly mentioned, the non-exempt are not in- 
cluded. 

The next paragraph bears upon procedure. Of course, 
it takes for granted that the essential form prescribed by 
common law is observed, unless expressly provided other- 
wise in the mandate of delegation. But there is a margin 
for accidental formalities; these are left to the judgment 
of the delegate, which may differ from that of the dele- 
gans. As in the case of rescripts, so here the intention 
of the delegans must be ascertained from the text. 39 
When a special mode of procedure, differing from that 
prescribed by common law, is enjoined, this must be fol- 
lowed. If the mode is merely insinuated, without the 
clause " non aliter" or * sic neque alio tnodo," or * si se- 
cus fiat, irritu.m sit et inane," the delegatus may proceed 

» Cfr. c. 22, X, I, 3. <J* reseripHs. 



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184 ECCLESIASTICAL PERSONS 

according to his good pleasure, observing, however, the 
essential solemnities of legal procedure, if this is pre- 
scribed, or the tenor of his faculties. If no place is stated 
by the delegans, the place of the parties must be chosen, 
if it is safe. 40 If no time is fixed, the business must be 
finished within the tempos utile, i. e., a year from the date 
of delegation, with due regard, however, to the nature of 
the case as well as the distance of the parties. 41 The rea- 
son for keeping within the limits of the mandate is ex- 
pressed in the Roman law, which states that he who does 
not observe them appears to do something unauthorized. 42 
An analogue may be found in the case of diplomatic 
agents, who receive instructions of a twofold kind, some 
of which must be strictly followed, while others are left 
to their discretion. 

Can. 204 speaks of recourse to a superior, e. g. t from a 
bishop to the Apostolic See. A recourse differs from an 
appeal. The latter always supposes a sentence, either 
interlocutory or final, whilst the former does not neces- 
sarily suppose a sentence. The way to a higher superior 
is open at any time. But the Code says that in case 
of a recourse, the voluntary or non-judicial jurisdiction 
of an Ordinary or a delegate is not suspended. There- 
fore, for instance, a bishop may proceed with the investi- 
gation of, say, a matrimonial case and even pronounce a 
non-judicial sentence. But as soon as he is notified that 
the parties are having recourse to the Apostolic Delegate, 
or to Rome, he should stop his own procedure and not 
vex the higher tribunals with importune insinuations, un- 
less the case requires it, in which eventuality information 
shall be welcomed by the higher authorities. 



i<> C. 11, 6 s , X, 3; c. 13, X, I, 09, I, 29, 11. 21 f. 

41 C. a6. X, I, 39'. Santi-Leitner, 42 L. 5. dig. 17. 1. 



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CANON 205 185 

several delegates 
Can. 205 



§ 1. Si plures iurisdictionem delegatam obtinue- 
rint pro eodem negotio, ct dubitetur utrum delegatio 
facta fuerit in solidum an collegialiter, praesumitur 
facta in solidum in re voluntatis, collegialiter in re 
iudiciali. 

§ 2. Pluribus in solidum delegatis, qui antea ncgo- 
tium occupavit, alios ab codcm excludit, nisi aut 
posthac impediatur aut nolit ulterius in negotio pro- 
cedere. v 

§ 3 Pluribus collegialiter delegatis, omnes simul 
pro actorum validitate in negotio expediendo proce- 
dere debent, nisi in mandato aliud cautum sit. 



Can. 206 

Pluribus successive delegatis, ille negotium expe* 
dire debet cuius mandatum anterius est nee posteriore 
rescripto exprcsse abrogatum fuit 

A decretal 43 of Celestine III (1191-1198) says that the 
Apostolic See rather appoints several delegates than one, 
in order that the judgment may be solid. This may be 
done in such a manner that the several persons delegated 
are responsible in solidum, i. e.> each one of them 
is responsible conjointly with the others for the whole 
thing, for instance, a payment, or a judgment, or bail, — 
or severally pro rata, i. e., each for his proportionate share. 
If they have jurisdiction in solidum, the whole jurisdic- 
tion resides in each one, and each may therefore decide 
the case by himself without the cooperation of the others. 
Again, several may be delegated as one body or quasi- 

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186 ECCLESIASTICAL PERSONS 

corporation (collegialiter), and in that case all have to 
proceed conjointly in order to act validly. 44 

Concerning delegation in solidum, our Code says it 
must be presumed in voluntary or non-judicial juris- 
diction, because voluntary jurisdiction does not essentially 
require the formalities of procedure, nor does it, gen- 
erally, infringe upon the rights of others. But judiciary 
jurisdiction is supposed to be given to the body as such 
or collegialiter™ In the latter case, as § 3 states, all the 
judges have to proceed at the same time, like a jury, 1. e., 
they must commence the trial by a simultaneous sum- 
mons/ 6 which is the first judicial act. This formality is 
so important that the defendant may refuse to appear if 
not all the names of the corporate judges are named in 
the summons. 

Then again all essential judicial acts, such as the hear- 
ing of witnesses, issuing interlocutory or final sentences, 
must be made by all the judges in unison. 

It is otherwise with the delegatio in solidum (§ 2), be- 
cause in that case the one who issues the summons first 
is entitled to proceed to the exclusion of the others. Only 
in case one is prevented by sickness or some other impe- 
diment, or does not proceed within the appointed time 
(one year) to finish the affair, another may take his place. 

When several judges have been delegated, neither in 
solidum nor collcgialitcr, but merely successive, then 
it depends upon the date of the rescript issued by the 
delegans. 

If the case is of voluntary jurisdiction the rescript is 
presumed to be one of favor ; if the case is of contentious 



44 Santi-Lcitner, I, 29, n. aj. rescript or mandate containi the 

46 Cfr. cc. 2, 16, 2i, 22, 23, X, clause that in case of a legitimate 

I, 29; tit 14 in 6". impediment two may proceed with- 

40 C -•-, X, I, *9\ — unices the out the third one; ibid. 



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CANON 207 187 

jurisdiction, the rescript is presumed to be one of justice. 
In the former instance, consequently, the date is a dies 
datae, or the day when issued by the delegans; in the lat- 
ter, it is the dies presentatae or date when the letters are 
shown to the parties interested or the execution of the 
rescript takes place. 47 But it is safe to say that every 
rescript of delegation effectively is a rescript of justice 
or at least one which needs an executor, and hence only 
the date of presentation may here be considered ; * 8 for 
the parties have a right to have the rescript " shown " to 
them. 



cessation of delegated and ordinary jurisdiction 

Can. 207 

§ 1. Potestas delegata exstinguitur, expleto man- 
date; elapso tempore aut exhausto numero casuum 
pro quo concessa fuit; cessante causa finali delega- 
tionis; revocatione delegantis delegato directe inti- 
mata aut renuntiatione delegati deleganti directe ul- 
timata et ab eodem acceptata; non autem resoluto 
iure delegantis, nisi in duobus casibus de quibus in 
can. 61. 

§ 2. Sed pot estate pro foro inter no concessa, actus 
per inadvertentiarn positus, elapso tempore vel exhau- 
sto casuum numero, validus est. 

§ 3. Pluribus collegialiter delegatis, si unus defi- 
ciat, aliorum quoque delegatio exspirat, nisi aliud ex 
tenore delegationis constet. 



Can. 208 
Ad normam can. 183, § 2, potestas ordinaria non 

47 Cf. c 8, 6°, I, 14; can. 38; « C. 12, X, II, 28; c. 1, Extrav. 

can. 48. Comm. I, 3 de elcctione. 



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exstinguitur resoluto iure concedentis officium cui 
adnexa est; sed cess at, amisso officio; silet, legitima 
appellatione interposita, nisi forte appellatio sit tan- 
tum in dcvolutivo, firmo praescripto can. 2264, 2284. 

Can. 209 

In crrore conununi aut in dubio positivo ct proba- 
bili aivc iuris sivc facti, iurisdictionem supplct Ecclc- 
sia pro foro turn extcrno turn interne 

In can. 207, § 1, six modes are enumerated by which 
delegated power ceases. These apply indiscriminately 
only to jurisdiction in foro externo, because § 2 of the 
same canon modifies two of them in regard to the court 
of conscience by ordaining (1) that the mandate is ful- 
filled if the sentence has been pronounced or the rescript 
has been executed, 48 because after the sentence one ceases 
to be judge; (2) if the time has expired, if a certain time 
was fixed, which commences, as said above, from the date 
when the documenet of delegation was presented; 60 (3) 
if the number of cases (for instance, twenty) is exhausted. 
These two latter modes of expiration do not affect the 
forum internum if a confessor should, by oversight, ab- 
solve in one more case than allowed, or if he should 
absolve beyond the time granted by the indult. 51 But 
since the forum internum is generally mentioned, and this 
comprises the confessional as well as extra-confessional 
application, 62 we believe we are justified in saying that 
any act, either in the confessional or outside of that tri- 
bunal, performed by oversight with regard to the time or 



P 



4B C. 0, X. I, 39: I. 55. dig. 42. W atolica indulta," Aug. 5. 1744. 58 3. 

L 1, Cod. Just. VII, 52. 6; " Apostolicum ministcrium," May 

SO C 4. X, I, 29; c. 12, X, II, 28. 30, 1753. I 3 (for England). 

•1 Stricter Benedict XIV, "Apo' 82 Can, 194. 



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CANON 209 189 

number of cases, is valid. Thus a dispensation executed 
outside the confessional, but intended for the court of 
conscience, would be valid even if applied by mistake be- 
yond the specified time and number. (4) If the motive 
cause of a delegation ceases (e. g. t an indult given for a 
solemn occasion, as a jubilee) the jurisdiction ceases; (5) 
if the delegans expressly (not only tacitly) revokes the 
delegation and the repeal is duly made known to the dele- 
gate. Note that the delegans may revoke a delegation 
at any time, even though the delegate has given the case 
a legal turn by summoning the parties. But the delegate 
who has subdelegated the whole jurisdiction to another is 
not entitled to revoke the subdelegation if the business 
had already taken a legal turn. 58 (6) If the delegate re- 
signs (or refuses) the delegation and the resignation is 
accepted, the delegation ceases. 

Generally speaking, no one can be compelled to be a 
delegate, unless the delegans has jurisdiction proper over 
him. Thus the Pope can compel any prelate or clergy- 
man to accept a delegation, an Ordinary can compel any 
clergyman of his jurisdiction but not a clergyman of an- 
other diocese ; a metropolitan cannot force one of his 
suffragans to accept a delegation. 54 

The first pragraph of our canon, modifying the old 
law," says that only in two cases a delegation expires by 
one's going out of office. They are the cases mentioned 
in can. 61, vis., if a clausula to that effect had been in- 
serted in the mandate, or if power was given to grant a 
favor to particular persons mentioned in the rescript, as 
long as the matter has not taken a legal turn. 

If several delegates had been appointed cotlegialiter, the 
power of all of them ceases when one fails either by 

e> c. 6. 6°, i, 14; c 37. X. I, 29; b* c. ii t X, I, 31. 

e. 7, 6", I, 14. 05 Cc. 14, 42, X, I, *9- 



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death, or accepted resignation, or by the infliction of a 
penalty implying the loss of ecclesiastical power. 

Can. 208 speaks of the loss of ordinary power. It 

a 

says (1) that even if the superior who has conferred the 
office to which that power is attached goes out of office 
by death, resignation, transfer, or privation, the power 
is not lost. Hence the bishops of the U. S., who are 
appointed by the Pope, do not lose their ordinary power 
by a vacancy in the Holy See. (2) The ordinary power 
is lost if the office itself is lost. Thus, if a bishop dies 
or resigns or is deprived of his office, his power ceases. 
(3) The power becomes quiescent or silent if an appeal 
is made to a higher authority or instance, provided, of 
course, the appeal is in suspensivo, not in devolulivo, for 
as the former term implies, by such an appeal the juris- 
diction of the inferior is suspended. 00 If one who is ex- 
communicated or suspended ° 7 has rendered a declaratory 
or condemnatory sentence, the sentence itself is null and 
void, and consequently the appeal will be of no conse- 
quence, i. e., it does not suspend the ordinary power. 

Can. 209 provides for the common good and public se- 
curity as well as for the tranquillity of conscience by re- 
affirming the well-known principle that the Church sup- 
plies the necessary jurisdiction zvhen a common error or 
a positive doubt arises. Of course, the common error, 
to have this effect, must be accompanied by a tititlus colo- 
ratus or an apparent title to the office one exercises. An 
intruder has no such claim. 5 ' But if an Ordinary or 
confessor were commonly but erroneously supposed to 
have the necessary faculties, the Church would supply 
the defect of real jurisdiction. The same effect is pro- 
duced by a positive and probable doubt, i. e., one which 

a 

so Concerning appeals mc can. 67 Can. 2264, 2284. 

1879 ff. 08 Reiffenituel, II, I, n. aoo. 



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for certain reasons and circumstances inclines more to 
one side than to the other, in this case more to the side 
of the power being vested in the person whose court is 
sought. Whether this doubt regards the facts or the law 
is immaterial. A doubt regarding a fact would be 
whether a particular Ordinary or priest has a certain 
faculty; a doubt regarding the law (ius), whether the 
case falls under his jurisdiction. To quiet consciences 
the Church, out of the fulness of her power, supplies the 
defective jurisdiction and renders valid acts which would 
otherwise be invalid. 

power of order 

Can. 210 

Potestas ordinis, a legitimo Superiore ecclesiastico 
sive adnexa officio sive commissa personae, nequit aliis 
demandari, nisi id expresse fuerit iure vel indulto con- 
cessum. 

This canon says that the power of order attached to an 
office or entrusted to a person by a legitimate superior, 
cannot be delegated to others, except by express permis- 
sion either contained in the law or granted through an 
indult. 

The power of order is the power imparted by ordina- 
tion and is separable from that of jurisdiction. The term 
is here used of episcopal or pontifical power, as the 
priestly power and that attached to lower orders can 
hardly have entered the mind of the legislator. 59 

Pontifical power comprises that for which either the 
episcopal order is required or which can not be exercised 

50 Thi» U clearly seen from the note* of Card. Gasparri to toil canon. 



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without the use of holy oils. 80 To this category belong 
the conferring of orders, confirmation and the consecra- 
tion of sacred edifices w and utensils with chrism. These 
faculties belong by right to consecrated bishops. How- 
ever, the power of conferring minor orders may by a 
special indult of the Pope be delegated to a priest. The 
same is true of the power of confirmation and consecrat- 
ing churches. 08 By law, abbots nullius and vicars Apos- 
tolic may confer confirmation, tonsure and minor orders 
and consecrate altars; abbots regiminis, if blessed, may 
confer minor order on their own subjects. 68 Whether 
the power of conferring subdeaconship and deaconship 
may be commissioned to a priest, is uncertain. Since the 
pontificate of Innocent VIII (1484-1492) we do not hear 
of any such privilege being granted to a priest or abbot. 
And even the bull ascribed to that pope has been strongly 
assailed as to its genuineness." Some defend, others 
attack it, but the controversy has no practical value. 



00 Benedict XIV, "Apcstolioum 
ministerium," May 30, 1753, fi 3. 

fll/d., Ep. ad Eogelhardtum 
{Bull., Prat!, III, p. 44s ft*.)- 

82 Ibid., and " Apostolicum minis* 
terium," 91 41 9; D* Syn. Dioec, 
VII, 2 U 



68 Can. 783, 8 3: 957, 8 a; 964- 
8* Cfr. Bachofen, Compendium 

Juris Reg., 1903. p. 256; Pohle- 

Preuia, The Sacraments, IV, 124; 

Catkolie Fortnightly Review, 1917, 

St Louis, pp. 67 if. 






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TITLE VI 

RETURN OF CLERGYMEN TO THE LAY STATE 






p 



Can. 2ii 

§ i. Etsi sacra ordinatio, semcl valide recepta, nun- 
quarn irrita hat, clericus tamcn maior ad statum 
laicalem redigitur rescripto Sanctae Sedis, decreto vel 
sententia ad normam can. 214, demum poena degrada- 
tionis. 

§ 2. Clericus minor ad statum laicalem regreditur, 
non solum ipso facto ob causas in iure descriptas, sed 
etiam sua ipsius voluntate, praemonito loci Ordinario, 
aut eiusdem Ordinarii decreto iusta de causa lato, si 
netnpe Ordinarius, omnibus perpensis, prudenter iudi- 
caverit clericum non posse cum decore status clericalis 
ad ordines sacros promoveri. 

Can, 212 

in 

§ 1. Qui in minoribus ordinibus constitutus ad sta- 
tum laicalem quavis de causa regressus est, ut inter 
clcricos denuo admittatur, requiritur licentia Ordinarii 
dioecesis cui incardinatus fuit per ordinationem, non 
concedenda, nisi post diligens examen super vita et 
moribus, et congruum, iudicio ipsius Ordinarii, expe- 
rimentum. 

§ 2. Clericus vero maior qui ad statum laicalem 
rediit, ut inter clericos denuo admittatur, indiget San- 
ctae Sedis licentia. 

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194 ECCLESIASTICAL PERSONS 

Can. 213 

§ 1. Omncs qui e clericali statu ad laicalem legi- 
time redacti aut regressi sunt, eo ipso amittunt officia, 
beneficia, iura ac privilegia clericalia et vetantur in 
habitu ecclesiastico incedere ac tonsuram dcferre. 

§ 2. Clericus tamen maior obligatione coelibatus 
tenetur, salvo praescripto can. 214. 

Can. 214 

§ z. Clericus qui metu gravi coactus ordinem sacrum 
recepit nee postea, reraoto metu, eandem ordinationem 
ratam habuit saltern tacite per ordinis exercitium, vo- 
lens tamen per talem actum obligationibus clericalibus 
se subiicere, ad statum laicalem, legitime probata 
coactione et ratihabitionis defectu, sententia iudicis 
redigatur, sine ullis coelibatus ac horarum canonica- 
rum obligationibus. 

§ 2. Coactio autem et defectus. ratihabitionis pro- 
bari debent ad normam can. 1993-1998. 

Although sacred ordination, once validly received, can 
never be annulled, a clergyman in higher orders may be 
reduced to the lay state by a rescript of the Holy See, by 
a decree or sentence issued in accordance with can. 214, 
or, finally, by degradation. ' 

A cleric in minor orders is reduced to the lay state not 
only ipso facto for reasons stated in the law, but may also 
return thereto of his own accord, after having informed 
the Ordinary of the diocese, or by virtue of a decree is- 
sued by the same Ordinary for just reasons, if the latter 
upon due deliberation prudently judges that the cleric 
cannot be promoted to higher orders without disparage- 
ment to the clerical state. 



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Clerics in minor orders who have returned to the lay 
state, cannot be again admitted to the ranks of the 

a 

clergy, unless the Ordinary of the diocese in which they 
were incardinated grants the necessary permission, which, 
however, should not be given except after a careful in- 
vestigation of their life and conduct, and, if deemed 
opportune, upon suitable trial or test of character. 

A cleric in higher orders who has returned to the lay 
state, may be readmitted to the ranks of the clergy only 
by leave of the Holy See. All those who are reduced 
from the clerical to the lay state thereby lose their cleri- 
cal offices, benefices, rights, and privileges and are no 
longer allowed to wear the clerical garb and tonsure. 

A cleric in higher orders remains bound by the law of 
celibacy, save in the case mentioned in can. 214. 

A cleric who was compelled under grievous fear to re- 
ceive a higher order, and has not ratified the ordination at 
least tacitly by the performance of an act proper to the 
order received, should be reduced to the lay state by a 
sentence of the ecclesiastical judge given after the coer- 
cion and the defect of ratification have been duly proved; 
in which case he is bound neither by the obligation of 
celibacy nor by that of reciting the canonical hours. 

The first three centuries were severe in meting out 
penalties to clerics. They were treated much like lay- 
men. 1 In the fourth century a noticeable mitigation was 
introduced. Clerics who had committed a serious 
crime 2 were deposed but permitted to stay in the com- 
munion of laymen. Communio laica then meant that a 
cleric was reduced to the position of a layman and could 



1 Funk, Manual of Church His- theft, absence from the diocese; cfr. 

tory, 191 j, I, 197. A]ju3t. Canon*, 25, 61; Smith-Chect- 

S Capital crimes were: apostasy, ham. Dictionary of Christian A** 

homicide, adultery (moechia); acri- tiquittes, 1880, II, 947. 
out crimes: fornication, perjury. 



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196 ECCLESIASTICAL PERSONS 

receive holy communion, but outside the bema or railing 
which divided the nave from the presbytery. This miti- 
gation, which certainly occurs in the fourth century, was 
introduced for the reason that, as St. Basil 8 as well as the 
Apostolic canons say, a cleric should not be punished 
twice. Later synods generally combine this penance with 
that of being confined in a monastery with the right of lay 
communion. As a penalty following degradation, the re- 
duction of clerics to the lay state is amply testified to in 
the Decretals.* But examples of dispensation from 
higher orders, or, more correctly, from the obligations 
attaching thereto, are very rare in history, at least to our 
knowledge. Perhaps one of the best known examples is 
that of King Casimir of Poland in the eleventh century , s 
but not many more examples could be adduced, unless, of 
course, where a trial ex metu was instituted. 

The above historical note has touched upon the three 
reasons which may bring about a reduction to the lay 
state, as outlined by can. 21 1, § 1. The first is a re- 
script of the Holy See to the effect that, notwithstand- 
ing a validly received higher order (which is indelible),* 
a cleric is free from the law of celibacy, the obligation 
of the Breviary, and other duties. It is evident that 
weightier reasons are required for a dispensation from 
the obligations attached to deaconship dian from those 
attached to subdeaconship. The second reason is a f *4i * 
cial sentence concerning the reception of a higher order 
from fear or coercion, as seen under can. 204. The third 
reason is degradation, which comprises deposition, priva- 
tion of clerical prerogatives, and reduction to the lay 



8 Ad AmphilocK, c. 32. B Sczygickkl, Aqutia Potono-Btni- 

AC. 10. X, II, i| c. p, X, V, 7; dietina, 1663, p. Q4 f 
c. 27, 4, V, 40. a Trid., tess. 23, can. 4, c. 4 de 

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CANON 214 197 

state, and can be inflicted only for crimes stated in the 
law and after a duly conducted trial or confession.' 

A cleric in minor orders may be reduced to the lay state 
if he does not wear the clerical dress, as stated above, 8 
or if he spontaneously enlists in the army ; B thus also a 
dismissed religious, especially if he has made profession 
by deceit. 10 But the Ordinary may pass judgment, if he 
finds reason for not admitting a cleric to higher orders, 
because minor orders were instituted precisely for the 
purpose of testing character, or as a kind of clerical 
novitiate. 

Can. 212 establishes the conditions for readmissicn to 
the clerical state. Formerly a rather mild practice was 
defended, 11 but to-day, in order to guard against fraud 
and rashness, readmission is only allowed with the direct 
permission of the Ordinary, if the clergyman is in minor 
orders ; if he is in higher orders, a rescript of the Holy 
See is necessary." 

Canon 213 treats of the effects of the reduction of a 
cleric to the lay state. They are, first and above all, the 
loss of all the ecclesiastical offices and benefices held by 
the delinquent, which therefore become vacant from the 
moment the rescript is received, or the sentence is uttered 
according to can. 1993 f., or the sentence of degradation 
is issued. A second effect is the loss of clerical preroga- 
tives and the prohibition of wearing clerical distinctions, 
hence the privilegium fori, canonis, and immunitatis, 
which the so-called diaconi selvaggi (roaming deacons) 
in the former Neapolitan Kingdom used to claim, are 
lost." 



t Can. 3305, 3314, 3343, *354» ll Benedict XIV, Da Sjn. Diorc. 

»3«l, »3g8. XTI. 3, 1 ff- 

• Can. 136, | 3. 12 Pontifical* Rom., tit. degra- 

• Can. 141 9 J. datonis forma. 

10 Can. 648; can. 3367. as Cfr. cc 1, 3, 7, 9, X, III, 3; 

c. on. 6°, I, is. 



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§ 2 of can. 213 appears to us incomplete. We under- 
stand, indeed, that the law of celibacy remains after the 
sentence of degradation, but ceases after the sentence 
ex metu. But what if a rescript of the Holy See is ob- 
tained for a subdeacon? Is he bound to observe celi- 
bacy? If so, in most cases the object will not be 
achieved. From the recital of canonical hours all are 
freed, for the Code makes no distinction. 

Can. 214 alludes to a case that may happen and has 
happened in the Greek (Coptic) Church, which permitted 
the ordination of infants, which, as Benedict XIV says, 1 * 
was valid though illicit. Such ordinations are not likely 
to happen now-a-days. But moral coercion — physical 
coercion would exclude validity for lack of consent — 
may still be brought to bear, especially on devoted and 
timorous children, by importune entreaties, inducements 
or threats of ill will, displeasure and disinheritance. 10 
When one submits to ordination under such influences, 16 
the ceremony is valid, because the voluntariness of the 
consent is not simply excluded. The fear may be re- 
moved after ordination and the ordained person find him- 
self between two horns of a dilemma: Should I exercise 
sacred functions or not? And if I do, do I thereby ratify 
my ordination? The answer lies in that apposition 
"volens tamen," somewhat clumsily inserted. If such a 
one, in exercising a sacred function, has the strict inten- 
tion of complying with obligations attaching to the cleri- 
cal state, he is supposed to ratify the ordination received 
under the pressure of fear. But if he has no such inten- 
tion and performs the sacred function materially 
or mechanically, because he was told to do so, or for 

14 " Eo quamvis tempore," May 10 Richtcr, Trid., 175, n. 6; phj- 

4. »745. I '7J " Probe te," Dec. 15, tical enaction, ibid., n. 4. 

175 1. I 31 D* Syn. Diotc, XII, 4. 18 Can. 103, 5 a. 
a !. 



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CANON 214 199 

fear of causing a disturbance, the intention of ratifying 
is absent and hence the function cannot be regarded as a 
sign of consent or ratification. However, in case such a 
one performs a sacred function, the presumption is al- 
ways that he means to ratify his ordination, unless he 
protests to some trustworthy witness. All such cases 
must be referred to the S. C. Sacr. If the one thus or- 
dained wishes to be freed from the obligations attendant 
upon sacred orders, the S. Congregation shall refer the 
case to the court of the diocese to which the plaintiff be- 
longs. In order to be free from these obligations two 
uniform sentences are required. 17 

IT Cfr. can. 199J-1998. 



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SECTION II 

THE HIERARCHY 

After having explained the difference between clergy 
and laity and described the clerical state with its rights 
and duties, as well as ecclesiastical offices in general, the 
Code proceeds to treat of the ecclesiastical hierarchy, be- 
ginning with the Supreme Pontiff. The term hierarchy 
is here chiefly, though not exclusively, taken in the juris- 
dictional sense. However, although the Catholic Church, 
in its universal aspect, forms a compact and perfect so- 
ciety, embracing all baptized Christians, yet de facto there 
is also a local organization, which parcels out the Catho- 
lic world into various districts with minor divisions. 
Hence the Code first mentions 

the local organizations 
Can. 215 

§ x. Unius supremae ecclesiasticae pot es tat is est 
provincias ecclesiasticas, dioeceses, abbatias vcl prac- 
laturas nul!ius, vicariatus apostolicos, praefecturas 
apostolicas erigere, aliter circumscribere, dividere, 
unire, supprimere. 

§ 2. In iure nomine dioecesis venit quoque abbatia 
vel praelatura nullius; et nomine Episcopi, Abbas vel 
Praelatus nullius, nisi ex natura rei vel sermonis con- 
textu aliud constet. 

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CANON 216 201 

Can. 216 

§ z. Territorium cuiuslibet dioecesis dividatur in 
distinctas partes territoriales ; unicuique autem parti 
sua peculiaris ecclesia cum populo determinate est as- 
signanda, suusque peculiaris rector, tanquam proprius 
eiusdem pastor, est praeficiendus pro necessaria ani- 
marum cura. 

§ 2. Pari modo vicariatus apostolicua ct praefe- 
ctura apostolica, ubi commode fieri possit, dividantur. 

§ 3. Partes dioecesis de quibus in § i, sunt paroe- 
ciae; partes vicariatus a po stolid ac praefecturae apo- 
stolicae, si peculiaris rector eisdem fuerit assignatus, 
appellantur quasi-paxoeciae. 

§4. Non possunt sine speciali apostolico indulto 
constitui paroeciae pro diversitate sermonis seu natio- 
nis fidelium in eadem civitate vel territorio degentium, 
nee paroeciae mere familiares aut personales ; ad con- 
stitutas autem quod attinct, nihil innovandum, incon- 
sulta Apostolica Sedc. 



Can. 217 

§ 1. Episcopus territorium suum in regiones seu di- 
strictus, pluribus paroeciis constantes, distribuat, qui 
veniunt nomine vicariatus foranei, decanatus, axchi- 
presbyteratus, etc. 

§ 2. Si haec distributio, ratione circumstantiarum, 
videatur impossibilis aut inopportuna, Episcopus con- 
sulat Sanctam Sedern, nisi ab eadem iam fuerit pro- 
visum. 



The supreme ecclesiastical power alone is competent 
to erect, circumscribe, divide, unite or suppress ecclesi- 
astical provinces, dioceses, abbies or prelatures nullius, 
Apostolic vicariates and prefectures. 



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ECCLESIASTICAL PERSONS 

Under the name of diocese the law comprises also an 
abbey or prelature nullius; and by the name of bishop it 
understands also an abbot or prelate nullius, unless the 
nature of the matter or the context require a different in- 
terpretation. The territory of each diocese should be 
distributed into districts, and to each of these assigned a 
special church with a determined part of the flock, over 
which is to be placed a local pastor, who shall take the 
necessary care of souls. 

Similarly should be divided, wherever possible, vicari- 
ates and prefectures Apostolic. 

The minor divisions of a diocese mentioned in § I are 
called parishes; the minor divisions of a vicariate or pre- 
fecture, if they have their own rectors, are called quasi' 
parishes. 

Henceforward no parishes are to be established for 
faithful of diverse language or nation in the same city or 
territory without a special Apostolic indult. In regard to 
such parishes already existing, nothing is to be changed 
without the advice of the Holy See. 

Every bishop is to divide his territory into districts, 
each comprising several parishes, to go by the name of 
foraneous vicariates, deaneries, archpresbyteries, etc. 
Where by reason of special circumstances such a di- 
vision is impossible or infeasible, the bishop should con- 
sult the Holy See, unless the latter has already made pro- 
vision. 

The meaning of these canons is evident and only 
requires a few historical remarks. 1 When the first 
epoch, marked by itinerant preachers and ministers, had 
passed, the local organization alone remained. This ex- 
tended from cities to suburbs, with areas 2 of widely dif- 

- 
< 

1 Duchesne (ir. by McClure), * A diocese, before Constantinc, 

Christian Worship, 1903, p. U ff. wu a minor portion of a province, 



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CANON 217 303 

ferent proportions, but the center of gravitation was the 
city where the bishop dwelt. It was generally held that 
each city should have its bishop with its own clergy. 
That these several bishoprics or churches formed an 
ecclesiastical province similar to the political provinces, 
cannot be proved for the first three centuries. Neither 
did the existing prominent churches imitate the civil divi- 
sions except in so far as there was a geographical connec- 
tion. It was natural that Rome should be looked upon 
as the center of Christendom, as it was not only the 
capital of the Orbis Romanus, but also the place hallowed 
by the two chief Apostles and consecrated by their mar- 
tyrdom. Thus the successors of St Peter were already 
in the first three centuries the acknowledged metropoli- 
tans of the West, which comprised the Italian peninsula, 
and later Western Illyricurn with Gaul, and still later 
the Spanish provinces. The Council of Nicasa (325). 
comparing Rome with the sees of Alexandria and 
Antioch, referred to the metropolitan organization of the 
former as an established fact. 8 Alexandria and Antioch 
in the East retained for centuries their influence over the 
districts which had been allotted to them. In the reign 
of Theodosius I (379-395). the five civil provinces of 
the Orient (Pontus, Asia, Thrace, and Egypt) had their 
ecclesiastical heads, who were later (fifth century) called 
patriarchs: the Orient with Antioch, Alexandria with 
Egypt, and Pontus, Asia, and Thrace under the newly es- 
tablished metropolitan of Constantinople, who, as occu- 
pant of the see of New Rome, 4 claimed the right of con- 
secrating the bishops of these three provinces — i. e., 



called rapotKla, parish; bat after has various readings; cfr. MaasBen, 

Const, a diocese signified a dii- Gesch. d. Quelle*, I, 19; c. 6, Dist 

trict or area comprising several 65. 

provinces. 4 C 3 Constant. I; c. 38 Chalced. 
8 Council of Nicaea (325), c. 6 



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204 ECCLESIASTICAL PERSONS 

jurisdictional, hierarchic power over them. Thus the 
exarchs or metropolitans of Heraclea in Thrace, of 
Ephesus in Asia, and Caesarea of Pontus dwindled to 
lower rank, whilst Jerusalem, under the intriguing Ju- 
venal, arose after the council of Chalcedon to the rank 
of a patriarchate, until Islam invaded the East. In the 
West we hear but little of metropolitans, if we except 
Milan, Aquileja, and Ravenna. Spain and Gaul show 
few traces of true organization with the sole exception 
of the Vicariate of Aries, founded by Pope Zosimus 
(417-418), which, however, proved a failure. 8 

More effective was the organization introduced by St. 
Boniface, the " Apostle of Germany," who acted strictly 
according tQ regulations received from Rome. A favor- 
ite theme of Pseudo-Isidore was the introduction of Pri- 
mates? of whom we hear as early as the fifth century, 
assuming that they are identical with the vicars of the 
Apostolic See. Thus, besides Aries, a vicar was cre- 
ated at Thessalonica, 7 and St. Boniface, as metropolitan 
of Mayence, was Primate of Germany. Later on the 
Primate of Hungary succeeded in upholding that title. 
In England, as we know from the history of the conver- 
sion of that country, St. Gregory had intended to erect 
two provinces. 8 Pope Nicholas I amalgamated the see 
of Bremen with the archbishopric of Hamburg. From 
the eleventh century onward the erection of bishoprics 
was reserved to the Holy See, 9 so that not even the papal 
legates were allowed to make a change in the territorial 
condition of dioceses. 10 



Q 



B Duchesne, /. e., p. 39. 9 C. I, DiBt m; Diotatus Greg. 

• Cfr. ec 1, i, List. 80; c. 1 f. VII, o. 7 (Migne 148, 407); c 1, 

Dist. 99. X, I, 7. 

T Due heme, /. c, p. 42. 10 C. ?, X, I, 7; c. 4, X, I, 30; 

a I-ir.ff.it 1, Anglo-Saxon Church c 4, 6°, I, 15. 
U. a.), I, ioy. 



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The erection and delimitation of new dioceses was gen- 
erally effected in forma bullae or by a document called 
11 bull of circumscription." 

In countries which maintained diplomatic relations with 
the Holy See, the civil government cooperated with the 
former in the act of circumscription as well as in the 
carrying these documents into effect. Where, however, 
there was complete separation between Church and State, 
the Holy See established or reestablished dioceses 
by papal bull. Thus Gregory XVI, by his Constitution 
" Benedictus Deus" of July 17, 1834, laid down the 
boundaries of several dioceses and Pius IX, Jan. 24, 1868, 
increased the number of dioceses in the U. S. By the 
bull " Universalis Ecclesiae," of Oct. 1, 1850, Pius IX re- 
established the hierarchy in England. 11 The whole 
business of erecting and changing the boundaries of dio- 
ceses now lies with the S. C. Cbnsistorialis. 1 * 

The new Code insists upon strict organization of dio- 
ceses proper and parishes with due regard to the distinc- 
tion between dioceses and vicariates. For the latter § 2 
makes allowance, "ubi commode fieri potest" But the 
distribution of dioceses into parishes must be enforced. 
For our country the passage referring to parishes of d«/- 
ferent languages is important, because in future none but 
English-speaking parishes can be erected without a spe- 
cial Apostolic indult. This law we consider very oppor- 
tune because it does away with inconveniences arising 
from uncertain boundaries and puts the division on the 
basis of territory, which alone should be considered for 
administrative purposes. But as to carry the law into 
effect at once would cause difficulties, the legislator mod- 
erates the law as to the existing parishes. Par- 



11 Kirch* nlexik o n, and ed., J. V. « Can. 348, 1 2. 

*' Circumscription «bullen." 



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zo6 ECCLESIASTICAL PERSONS 

ishes for a certain number or class of families, especially 
of the nobility, such as exist in Spain, are unknown in 
America. 

The Code, with some restrictions, also insists upon the 
erection of rural deaneries. The scope of this provision 
is apparent from can. 131, which urges conferences of 
the clergy for each rural district, as also from cc. 445 n\, 
which define the duty of deans to watch over the clergy 
of their districts. 



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TITLE VII 



THE SUPREME POWER AND THOSE WHO PARTAKE 
THEREOF BY ECCLESIASTICAL LAW 

! CHAPTER I 

the roman pontiff 

Can. 218 

§ i. Romanus Pcntif ex, Beati Petri in primatu Suc- 
cessor, habet non solum primatum honoris, sed su- 
premam et plenam potestatem iurisdictionis in univer- 
sam Ecclesiarn turn in rebus quae ad fidcm et mores, 
turn in iis quae ad disciplinam et regimen Ecclesiae 
per totum orbem diffusae pertinent 

§ 2. Haec potestas est vere cpiscopalis, ordinaria 
et immediata turn in omnes et singulas ecclesias, turn 
in omnes et singulos pastores et fidelcs, a quavis hu- 
mana auctoritate independens. 



Can. 219 

Romanus Pontifex, legitime electus, statim ab ac- 
ceptata electione. obtinet, iure divino, plenam supre- 
mae iurisdictionis potestatem. 

Can. 220 

Gravioris momenti negotia quae uni Romano Pon- 

207 



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208 ECCLESIASTICAL PERSONS 

tifici reservantur sive natura sua, sive positiva lege, 
causae maiores appellantur. 

Can. 221 

Si contingat ut Romanus Pontifex renuntiet, ad 
eiusdcm renuntiationis validitatem non est ncccssaria 
Cardinalium aliorumve acccptatio. 



The Roman Pontiff, being the successor of St. Peter, 
possesses not only an honorary primacy, but supreme and 
full power of jurisdiction in the whole Church concern- 
ing matters of faith and morals as well as of discipline 
and government. 

This power is truly episcopal, ordinary, and immediate, 
extending to each and every church no less than to each 
and every pastor, and to all the faithful, and is inde- 
pendent of every human authority. 

The Roman Pontiff, lawfully elected, obtains by divine 
right full power of supreme jurisdiction at the moment 
when he accepts office. All affairs of major import 
(causae maiores), by their nature or by positive law, are 
reserved to the Roman Pontiff, 

If the Roman Pontiff resigns his office, the resignation 
is valid without its acceptance by the cardinals or any one 
else. 

These four brief canons embody the Catholic doctrine 
of the Roman Pontiff, on which many volumes have been 
written and which is fully treated in every manual of fun- 
damental theology. We will limit our comments to a 
few canonical observations. 

All those who pervert the essential divine organization 
of the Church as a perfect society of the monarchical 
type, necessarily deny the power of the Roman Pontiff. 



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CANON 221 209 

The so-called democrats of the later middle ages (Mar- 
silius, Jandunus, Wiclif, and Hus) were deliberately 
bent on destroying the pure notion of papal power. 1 
But the Jansenists, Gallicans, and Josephinists were also 
far from the true idea of papal power. They gave the 
Supreme Pontiff the title "caput tninisteriale" somewhat 
like a premier, or first among equals 2 (primus inter 
pares) , but denied to him jurisdictional primacy over 
bishops and priests.* Pius VI, by the " Auctoretn fidei," 
Aug. 28, 1794, condemned the doctrine of the "caput 
ntinisteriale," which meant that the supreme power was 
given to the Church as such, and only by and through the 
deference and connivance of the Church at large to the 
Pope. Finally the Vatican Council, summing up the tra- 
ditional belief and many concHiary decisions, expressed 
the Catholic belief in its fourth and last session, held 
on July 18, 1870, which is embodied in our canon. 4 

Hence, (1) the power of the sovereign pontiff is truly 
a primacy of jurisdiction, which means not only inspec- 
tion or direction, but legislative, judiciary, and executive 
power. 6 

(2) This power is supreme by reason of its dig- 
nity, because it is not derived from human authority, but 
is of divine origin, independent of any one in the same 
category. 

(3) It is the plenHtude of power, because it com- 
prises all and every power needed for the attainment 
of the end for which the Church was founded. There- 
fore (a) all matters of faith and morals are subject to 
this power by reason of the infallible magisterium; (b) 



1 Cf. Denzinger, Enchiridion, ed. 4 Ibid., nn. 1667-1677 (Sesi. IV, 
9, 1900, nn. 513, 528, 534, 589. c. 3, de const. Eccl.). 

2 Ed. Richer, Dt Ecclesiastica el 6Piui V, "Auctorem fidei," n. 
Politic* Potistatf, ifiu. 5 (Den ringer, I. c, n. 1368). 

I Denzinger, /. c, nn. 1366, 1369. 



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210 ECCLESIASTICAL PERSONS 

the whole ecclesiastical administration belongs to it in 
virtue of the sacred mtnisterium; (c) the whole govern- 
ment of the Church may be claimed by the Pope by rea- 
son of the full and undivided imperium. 

(4) The power of the Pope is episcopal, inasmuch as he 
is the supreme pastor whom the whole flock, of whatever 
rite or dignity, by reason of hierarchic subordination must 
follow and obey, and with whom all must be united. 8 

(5) The power of the Pope is immediate — a quality 
which naturally flows from spiritual sovereignty, but had 
to be specified against the Febronians/ who, as stated 
above, made the Pope the mere representative or diplo- 
matic agent of the bishops. The supreme power accrues 
to the Pope not by any concession from or deference on 
the part of the bishops, but from Christ's promise and 
actual bestowal. 

(6) This power, lastly, is ordinary, because supreme, 
full, and immediate jurisdiction is imparted through 
and with the office of the successor of St. Peter and 
rests with him as long as he holds that office, from the 
moment he accepts the lawfully performed election until 
his death or resignation. Neither for the validity of 
the election nor for a resignation is acceptance, confirma- 
tion, or anything else required. The reason is not far 
to seek. The pontificate, being supreme and immediate, 
requires merely an appropriate human factor or instru- 
ment in order to exist. (Election is, we might say, the 
remote material element, whilst the consent of the elect 
is materia proxima, to which is added the divine form 
of the primacy embodied in the Roman bishop.) 



a V«t. Cone. icsa. IV, e. 3 (Den- which Pius VI promulgated the 

zinger, n. 1673). Const. " Super ioliditate," Nov. 38, 

T Eybel bad published a pamphlet: 1786 (Denziuger, n. 1363). 
"Whit U the Pope?" against 



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CANON 221 2U 

The question may be asked how the phrase "iure 
divino" in can. 219 is to be understood. No Catholic 
will doubt that the primacy is of divine sanction. But 
why is it held by the bishop of the Roman See, 
and not by the bishop of Antioch or the bishop of Alex- 
andria (founded, it is said, by St. Mark, the "spiritual 
son " of St. Peter) ? The majority of authors, theolog- 
ical 8 as well as canonical, maintain that it was by " divine 
ordinance," by the " providence of God," by a " supernal 
interposition M that the Roman See was chosen to be the 
instrument of Peter's Primacy. The proof from tradi- 
tion and common conviction, therefore, is in favor of the 
iure-divino connection of the Primacy with the Roman 
See. Yet it must be said, with an author who has writ- 
ten a monograph on the subject and acted as member of 
the Codification Commission, that no de fide definition 
has been issued on the subject. 9 A purely academical 
question ,0 is, whether a Pope could be deposed if he be- 
came a heretic or schismatic. Nego suppositum. 

Canon 220 mentions the causae maiores which are re- 
served to the Roman Pontiff. Gratian's Decree and the 

a 

Decretals contain several texts which refer to the so- 
called causae maiores. The text of Gratian, however, 
is taken largely from apocryphal sources. In one place, 
for instance, he says, that u all greater affairs must be 
referred to the Holy See, divine grace thus command- 
ing," and vindicates to the Apostolic Sec " ecclcsiasti- 
carum summas querelas causarum" and the condemna- 
tion of bishops. 1 * Besides, appeals to the Holy See are 
more than once refered to. It is safe to say that, since 
the synod of Sardica (343), appeals to the Apostolic 

a 
c 

"'-":. Mazzella, >'e Religion* W 10 Aichner, /. c, | 35, a. 

Eeclesia, 1892, p. 731 ff. XI C. 15, c. a.j, q. 1; c 6, 3. 3, q. 

oMsgr. Hollweck, Der Apost. 



Stuhl und Rom, 1895. 



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212 ECCLESIASTICAL PERSONS 

See ia were frequent. The canons of this synod had a 
peculiar fate, for in some versions they were simply 
attached to the canons of Nicsea, and having no special 
inscription or enumeration, were accepted as Nicene can- 
ons. A Latin translation containing them was circulated 
in Rome and Gaul, as the Codex Theatinus and others 
prove, whilst the African Church used copies of the 
Nicene Council without the canons of Sardica. When 
Apiarius, a priest of Sicca in Africa, appealed to Pope 
Zosimus, and the latter accepted the appeal by pointing 
to the canons of the Nicene Council, the African bishops 
remonstrated and denied that there were any such " Ni- 
cene canons." Both the Pope and the African bishops 
spoke the truth considering the state of their respective 
versions. But the African bishops were wrong in deny- 
ing that appeals to the Holy See are permissible. For 
Julius I (337-352) had accepted the appeal of St. Atha- 
nasius, and the Africans themselves had sent the decrees 
of two of their councils to the Apostolic See. 18 Besides, 
it is a historical fact that questions continued to be 
submitted to Rome, instances of appeals being those of 
Himerius, Bishop of Tarragona, in 384, of Victricus, 
Bishop of Rouen, in 403, and of Exuperius, Bishop of 
Toulouse, in 404. The replies are embodied in the noble 
epistle of Siricius and Innocent on ecclesiastical disci- 
pline." Besides appeals there were other causes brought 
before the Pope. Thus the restitution of deposed or 
sentenced bishops, doubtful or contested episcopal elec- 



12 Cc. 10, w, C. 2, q. a; c. 9, C. tnhsa sunt ad sedem epostolieam. 

3. q. 6; c. 50, X, II. 28: as to the Inde etiam rcscrip'.a venerunt; causa 

Sardican canons sec Hefele, Con- finita est, utinatn aliquando error 

eiliengesckichte, I, 341 * : 539 «.; finiatur." 

Maasacn, /. c, p. 9 f.; p. 56 S. *« Coustant, Epp. RR. Pontiff., 

i»Cf. S. Aug;., Serm. 132, n. 10: 1721; Duchesne, I.e., p. 37. 
"Jam enim de causa duo concilia 



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CANON 221 213 

tions, the concession of coadjutors, etc Add to this the 
convocation of general councils and the solution of 
doubts concerning articles of faith or ritual questions, 18 
and especially, later, the beatification and canonization of 
saints, the grant of exemptions, the erection of religious 
orders and congregations, dispensation from and commu- 
tation of certain vows, the erection and charge of higher 
ecclesiastical benefices, etc. 

An expression in the Gloss (ad. c. x, § I, 7) deserves 
some attention. 10 " No one," it says, "may appeal from 
the decision of the Holy See to another authority." The 
Gallicans had invented a formula, a certain panacea, as 
they said, for protecting the clergy and bishops from 
unjust sentences pronounced by Rome. This is the 
famous appellatio ab abusu, an appeal from the spiritual 
authority to the civil government. But that formula 
was a mere political measure, devised to hinder the free 
exercise of the spiritual power in matters proper to it. 
It was properly dealt with by the condemnation of the 
so-called Gallican Articles. 17 But there were other er- 
rors contained in the Gallican tendencies, which were 
transplanted to Germany and Austria and other coun- 
tries, even to the Republic of Switzerland. These are 
known as the " place turn regium" and other outcroppings 
of a truly autocratic system, which would submit to civil 
power every official communication of the Supreme Pon- 
tiff and of pastors with their flocks. 18 Therefore, quite 

o 

15 Cfr. cc. xo, 12, C. 2, q. 6j unit, cxin.it atque probat." 

c. 10, 6*, I, 6; c un. 6°, III, 5» 17 Innocent XI, April li t 1682; 

c 1, X, II, 7; c 5, Dlst. 17; c 3, Alexander VIII, "Inter multi- 

X, III, 43. pikes," Aug. 4, 1690; " Auctorem 

16 The verse reads: " Restituit fidei," Aug. 28, 1794; " Apoitolicae 
Papa solus, deponit et ipse — Arti- Sedis," 1869, n. 6-8; cfr. Charlas, 
culos solvit; synod unique facit ge- Troctatus de Lii/ertotibHj Eccl. 
neralem — Tranifert et mutat, op- Galliconat, 1725, III, U 166 ff. 
piUot nulla s ab iajo— Dividit ac l» Syllabus n. 28; Heiner, D$t 



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214 ECCLESIASTICAL PERSONS 

naturally, our Code insists on the supreme spiritual power 
being independent in its sphere of any human author- 
ity. And, truly, if the divinely established government 
were subject to temporal rulers, the mission of the 
Church would be jeopardized and often foiled. 

In order to complete the observations made thus far, 
we will add some remarks on 



THE PAPAL TITLES AND INSIGNIA 

By the term " title " we understand not only the vari- 
ous nomenclatures which distinguish the Pope, but also 
the diverse dignities inherent in the papal office. To 
commence with the latter, three of which have now be- 
come merely honorary, mere are 

i. Titles connoting preeminence: (a) Bishop of 
Rome, i. e., of the diocese within a circumferenece of 40 
miles of the City (with the exception of six suburbicarian 
bishoprics), called in Italian " comarca di Roma/' over 
which the Cardinal Vicar presides with ordinary juris- 
diction. 10 

(b) Metropolitan of the Ronton Province, which at 
the time of Innocent III comprised the region between 
the two provinces of Capua and Pisa, fl0 and had some 
significance as long as provincial councils were held in 
Rome. 

(c) Primate of Italy and the adjoining islands, Cor- 
sica, Sardinia, and Sicily (including Malta). 21 

(d) Patriarch of the Occident, in imitation of the Ori- 
ental patriarchates." 

Of these four titles only the first has a juridical value. 



Syllabus. 1894, p. ijx; Bachofen, 20 C 5, X, I, 33; v. Scherer, J. c, 

Svmma Iuris Ecc. Pub., 1910, p. I, 4*3- 

56 f.; p. 68. Jl C 11, Dfo 11. 

IB Benedict XIV, Dt Syn. Dioec, S3 C. 23. X, V, 33- 
II. 3. «. 



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CANON 221 215 

2. Honorary titles expressive of the office and dig- 
nity of the Sovereign Pontiff are the following: 

Papa from the Greek Tramras, i. e., father, which since 
the fifth century is exclusively used for the pope in 
the West; 2 * 

Apostolicus, vis. Dominus, in use since the fifth cen- 
tury, taken from the see, called Apostolic ; Pontifex Max- 
itnus, Sumtnus. 24 

Vicarius Dei or Vicarius Chrisli, also Vicarius Petri, to 
signify the primacy and source of power, in use since the 
thirteenth century." 

Servus Servorum Dei, which dates to the time of Greg- 
ory the Great (590-604). Because the monks were 
called u servants of God," Gregory, a former monk, called 
himself "Servus Servorum Dei" against the " Universal 
Patriarch " of Constantinople. 26 

With these titles arc in keeping the cermonies of the 
papal court. There is, first, the adoratio or reverence 
given to the Pope. At public cermonies the cardinals 
are supposed to kiss his foot and hand, the bishops his 
foot and knee, diplomatic representatives his hand. 27 
Formerly the emperors used to hold the strepa of the 
Pope's horse. Now-a-days the Pope is considered the 
first of sovereigns and in Catholic countries his envoys 
take precedence over all other diplomatic agents. 

The Pope is addressed as " Holy Father," in Latin, 
Beatissime Pater, e.g., in petitions; Sanctitas Vestra, 
Beatitudo Vestra, although beatitudo is also the address 
of Oriental patriarchs. 



IS Coustant. I. c. p. 765. 75. 87). 

1* V. Scherer, I, 468. Pontifex 17 The etiquette is the totalled 

Maxinius alludes to the pagan Sura- Spanish; but it is useless to assert 

mua Pontifex and to the Jewish that this adoratio or worship is in 

Pontiff or Highpriest. tended for tbe relics sewed in the 

is Cc. 2, 4, X, I, 7; c. 17, 6°, I, 6. tip of the slippers. 

isio. Diac. Vita Greg. (Migne 



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3. The most remarkable insignia of the Sovereign 
Pontiff are these : 

At certain solemnities the Pope wears the tiara or tri- 
regnum, a crown about 1% ft. high with three bands or 
small diadems, set with precious stones, and with 
two lappets hanging from the rear. In its present form 
it dates back to the first half of the fourteenth century 
(Benedict XII, d. 1342). No juridical significance can 
be attached to the tiara. 28 It is used at the coronation of 
the Pope and high solemnities; at liturgical functions the 
Pope wears the episcopal mitre. 

Instead of the crooked pastoral staff of the bishops the 
Pope uses the pedum rectum, a straight cross or staff, 
at the point of which is a cross, to signify the plenitude 
of power which the holder exercises in the name of 
Christ crucified. 1 * 

Besides, to indicate the fulness of his power, the Pope 
wears the pallium at all functions and without any re- 
strictions as to place. The usual or daily dress of the 
Pope consists of a cassock of white silk, a white silken 
skullcap, a pectoral cross, and slippers of red silk. 80 



-- Can-.. Encyet,, XIV, 717 f. or piteus, and the mitre on a baud 

(Broun); Wuweher.BeccM, Ur. or «cnrf (taenia) used hy prie*t». 

sprung d. papsll. Tiara u. d. bisekoft. 20 C. un. X, I, 15 fi 9; *'• Scherer, 

Mitra, 1899, shows that the tiara I, 468 f.; Wernz, I. c. U. p. 684. 

was modelled on the Phrygian cap to C, 4, X, I, 8; v. Scherer, /. c. 



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CHAPTER II 
general (ecumenical) councils 

Can. 222 

§ i. Dari nequit Oecumenicum Concilium quod a 
Romano Pontificc non fucrit convocatum. 

§ 2. Eiusdem Romani Pontificis est Oecumenico 
Concilio per se vel per alios praeesse, res in eo tractan- 

das ordinemque servandum constituere ac designare, 
Concilium ipsura transfeire, suspendere, clissolvere, 
eiusque decreta confirmarc. 



No general council can be held except by convocation 
of the Roman Pontiff, who presides over it either him- 
self or by legates, prescribes and assigns the matters to be 
treated, as well as the order to be followed, transfers, 
suspends, and adjourns the council and ratifies its decrees. 

Among the causae maiorcs reserved to the Roman Pon- 
tiff was enumerated the convocation of general councils, 
and hence this chapter is logically connected with the pre- 
ceding. But there is also another reason why the Code 
treats of general councils here. The Pope being the su- 
preme head of the universal Church, and a general coun- 
cil being a lawful gathering of prelates representing the 
whole body with the consent of the supreme head, it is evi- 
dent that such an assembly must be the foremost object 
of the sovereign power. Besides, the bishops being the 
successors of the Apostles, endowed with power to 
rule the Church of God, can be called together author- 

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218 ECCLESIASTICAL PERSONS 

itatively only by one who enjoys immediate jurisdiction 
over them. 

History testifies that the first four general councils were 
convoked by civil rulers ; but even at these, as the respec- 
tive acta prove, the Popes were legitimately represented 
by legates. 

As to the necessity of general councils, it is not abso- 
lute, but only relative. 1 For the power of the Pope is in- 
trinsically neither enhanced by a general council nor 
diminished by the absence thereof. But in order to dis- 
cuss matters thoroughly, and to impress the faithful as 
well as dissenters more effectively, to give a more wide- 
spread influence and application to universal decrees, a 
general council proves an effective means, especially in 
times of distress and spiritual calamities. 
in 

Can. 223 

§ i. Vocantur ad Concilium in eoque ius habent 
stiffragii deliberativi : 

i.° S. R. E. Cardinales, ctsi non Episcopi; 

2. Patriarchae, Primates, Archiepiscopi, Episcopi 
residcntialcs, etiam nondum consecrati; 

3. Abbates vel Praelati nullius; 

4. Abbas Primas, Abbates Superiores Congrega- 
tionum monasticarum, ac supremi Moderatores reli- 
gionum clericalium exemptarum, non autem aliarum 
religionum, nisi aliud convocationis decretum ferat. 

§ 2. Etiam Episcopi titulares, vocati ad Concilium, 
suffragium obtinen* deliberativum, nisi aliud in con- 
vocations express* cavcatur. 

§ 3. Theologi ac sacrorum canonum periti, ad Con- 



1 Bellarmine, Dt Coneiliis, I, 10; 189a, p. 809 ff. 
Maxzella, Dt Rtligiont 1% Ecclesia, 



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CANON 224 219 

cilium forte invitati, suffragium non habent, nisi con- 
sultivum. 

Can. 224 

§ 1. Si quis ex vocatis ad Concilium ad normam 
can. 223, § 1, cidern, iusto impedimento detentus. inter- 
esse non possit, mittat procuratorem et impedimentum 
probet 

§ 2. Procurator, si fuerit unus e Concilii Patribu9, 
duplici suff ragio non gaudet ; si non fuerit, publicis tan- 
tum scssionibus intercssc potest, sed sine suffragio ; ex- 
plcto autem Concilio, huius acta subscribendi ius babe t. 



If one of those called to the council is lawfully pre- 
vented from attending, let him send a procurator and 
prove the obstacle. 

The procurator, although being perhaps a father of the 
council, enjoys but one vote; if he is not a father of the 
council he has no deliberative vote, but may be present at 
the public sessions and sign the acts after the coun- 
cil is finished. 
I Can. 225 

Nemini eorum qui Concilio interesse debent, licet 
ante discedere, quam Concilium sit rite absolutum, nisi 
a Concilii praeside cognita ac probata discessionis 

causa et impetrata abeundi licentia. 

• i 

B 
■ 

The fathers of a council are not allowed to leave until 
it is duly concluded, unless the president of the council 
grants leave after having duly considered and approved 
the reasons for departure. 

The first of these three canons speaks of those who are 
called (vocantur) to attend a council. The term vocantur 
is to be taken as indicating a matter of fact, not a law or 



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220 ECCLESIASTICAL PERSONS 

rule. This is plain from the persons enumerated. For 
cardinals, if not bishops, are called in virtue of their 
privileged office, which the Vatican Council silendy ad- 
mitted, 2 as does also our Code. 

Those who must be called are the bishops, be they 
patriarchs, primates, archbishops, or simple bishops, pro- 
vided they are residential, and not merely titular. The 
reason why the residential bishops must be called lies in 
their twofold character of pastors and teachers. This 
double office they exercise in a twofold way: (i) As suc- 
cessors of the Apostles they share in the government of 
the universal Church and form a body analogous to the 
college of the Aposdes, with whom Christ remains until 
the end of time. (2) As residential bishops they exercise 
their office in a determined district or diocese, which, how- 
ever, is part and parcel of the universal Church. 8 This 
power is jurisdictional in a particular sense, while the 
power they exercise over the whole Church is jurisdic- 
tional in a general sense, so far, namely, as they convene 
in council under their legitimate superior. 

The next question would be, whether the right of a 
bishop to be called to a general council depends on epis- 
copal consecration or jurisdiction. The Vatican Council 
doubtless took the view that it is a right emanating 
directly from jurisdiction. This is implicitly also the 
standpoint of our Code, otherwise a bishop confirmed by 
Rome but not yet consecrated, could not be called. The 
point is palpably illustrated by the debate concerning the 
admission of titular bishops. After long deliberation the 
commission of cardinals entrusted with the investigation 
of the matter decided that such bishops are to be called, 
as they are bound by the oath "vocatus ad synodutn 



Q 



2 Cfr. Granderath- Kirch, '',-- 83, 440. 
sckichte det Vatik. Konrils, ijw3. I. B lb., p. 84 ff. 



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CANON 225 221 

venxam" The quaestio iuris the commission would not 
touch.* Our Code says, § 2, " etiam episcopi titulares, 
vocati ad concilium." The delicate question could, of 
course, be solved only by answering two others : ( 1 ) Is the 
tnagisteriutn an act of jurisdiction or of spiritual power 
based on the power of orders? and (2) Is episcopal juris- 
diction derived directly from God by virtue of consecra- 
tion, or from the Pope ? The commission would not 
solve the problem, as the time was too short. It only 
took the historical point of view, by which it was safely 
guided, thus making the council what it ought to be; 
* concilium episcoporum est" as the Council of Chalcedon 
says. 6 

But there is an unmistakable hint as to the viewpoint 
which the Vatican Council as well as our Code take with 
regard to the twofold question proposed above: the office 
of teacher and pastor follows jurisdiction, not consecra- 
tion, and this jurisdiction is supposed to be given by the 
Supreme Pontiff. Hence abbots nttllius are called to the 
council, although many of them are not consecrated; — 
in the Cassinese Congregation they are not even blessed, 
though some are real abbates nullius.* For these ab- 
bots nullxus as well for other abbots mentioned S. San- 
guineti, S. J., gave his votum. T He proved that since 
the second Nicene Council (787) the monastic bodies 
and their superiors took a conspicuous part in the af- 
fairs of the Church, but their participation in councils 
was a privilege, not a strict right, though abbots possess 
a quasi-episcopal jurisdiction, which is the reason of 
their being admitted to councils. But when he comes 



4 L. e., p. 93. Paolo fuori le mura. Cava dV Tir- 

B Sess. IV. rent 

• Those of Monte Cassino, S. I Granderath-Kirch, t. c, p. 99. 



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222 ECCLESIASTICAL PERSONS 

to the point — punctum saliens — whether all abbots, or 
only some of them, should be admitted, Fr. Sanguineti's 
conclusions seem not to tally with his premises. For in 
the Benedictine Order all abbots regiminis are endowed 
with quasi-episcopal jurisdiction, and neither the Abbot 
Primate nor the Abbot President possesses real juris- 
diction over the individual abbots. Hence the distinction 
between heads of monastic congregations and superiors 
of single autonomous monasteries is merely extrinsic. 
We fail to perceive the intrinsic reason of the distinction 
made, upon the opinion of Sanguineti, by the commission 
of cardinals in 1868 and now adopted by the Code. 
One reason advanced at the meeting, why not all abbots 
should be admitted, we understand, namely, that their 
number would be so great as to displease the bishops. 8 
Transeat! The superiors of non-exempt congregations* 
were not entitled to be present at general councils, which 
exclusion was logically based upon the theory of quasi- 
episcopal jurisdiction. 

Concerning proxies, our Code embodies the practice of 
the Vatican Council. 10 If a procurator is at the same 
time a " father " of the council, i. e. t entitled by law to 
a deliberative vote, he enjoys only one vote, for the rea- 
son that a bishop or pastor, being judge and counsellor 
at the assembly, cannot impart his judgment or counsel 
to another. Concerning bishops, the matter is still more 
palpable, for, being chosen by the Holy Ghost, they can- 
not communicate that personal gift to another." A proc- 
urator who does not belong to the " fathers " of the 
council enjoys no deliberative vote, unless, of course, 



8/6., p. 104. 10 Grandcraih-Kirch, /. c, I. 108 

Exempt congregations are the ff. 
KcdemptoriaU and the Passionists. ti lb., p. 115; Benedict XIV, Dt 

Syn. Diotc, 111, ti, 4. 



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CANON 226 223 

the Pope expressly grants him one, as Paul III allowed 12 
the procurators of some German bishops a decisive vote, 
which privilege, however, was repealed by Pius IV. 18 
Besides, the office of a procurator is to explain and prove 
the reasons why his mandans has not personally ap- 
peared, although he was under obligation to attend. 14 
The investigation of such cases must be laid either before 
a commission specially assigned by the council, or before 
the presiding officer. The latter must also take cog- 
nizance of and approve the reasons for a departure be- 
fore the close of the council. 

A last question may perhaps be of some juridical in- 
terest, vis., how many fathers must be present in order 
to call a council ecumenical? This question Bellarmine 16 
has answered by saying that the number cannot be de- 
fined but should be such as to constitute a moral repres- 
entation of the whole Church. He adds that at least 
some bishops should be present from the majority of 
provinces. The councils of the East had but few 
representatives from the Occident, whose small number 
was supplied by the papal representatives. 

order and authority of a general council 

Can. 226 

Propositis a Romano Pontifke quaestionibus Patres 
possunt alias addere, a Concilii tamen praeside antea 
probatas. 

Can. 227 

Concilii decreta vim definitivam obligandi non ha- 

l»"Dudum cum fide," Dec. 5. D* Syn. Dioec, III, n, 5. 
1545. iWv Concil., I, c. 17; Mazzella, 

!■ Aug. 26, 1563. /. c, p. 801. 
14 C. 4. X, II, 24; Benedict XIV, 



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224 ECCLESIASTICAL PERSONS 

bent, nisi a Romano Pontifice fuerint confirmata et eius 
iussu promulgate 

Can. 228 

§ 1. Concilium Oecumenicum sup re ma pollet in uni- 
versam Ecclesiam potestate. 

§ 2. A sententia Romani Pont ificis non datur ad 
Concilium Oecumenicum appcllatio. 

To the questions proposed by the Roman Pontiff others 
may be added by the Fathers, provided they are ap- 
proved by the presiding officer. 

Conciliary decrees have no obligatory force unless they 
are ratified by the Roman Pontiff and promulgated by 
his command. 

An ecumenical council possesses supreme power over 
the whole Church. 

From the judgment of the Roman Pontiff no appeal is 
admissible to a general council. 

Can. 229 

Si contingat Romanum Pontincem, durante Concilii 
celebratione, e vita decedere, ipso iure hoc intermitti- 
tur, donee novus Pontifex illud resumi et continuari 
iusserit. 

Should the Roman Pontiff die during the council, the 
latter is suspended until the new Pontiff gives orders to 
resume and continue it. 

As to the matter and the order of proposals, it is well 
known that preparatory sessions are held and various 
committees chosen. No general rule is laid down, and 
prelates who wish to make new proposals must submit 
them to the President of the council, in order that they 
may be sifted and discussed. 



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Concerning the vis definitiva, it should be remembered 
that the fathers of the council are judges concerning all 
matters proposed to their acceptance or rejection. 
Wherefore those who are mentioned in can. 233, § 1 and 
§ 2 subscribe the acts with the phrase definietts subscripsi. 
However, although these are regular judges, the final 
sentence remains with the Pope. He it is that ratifies 
the decrees either at the council itself, if he is personally 
present, or when they are submitted to him, generally by 
the secretary of the council. It may happen that some 
decrees are ratified, while others are rejected, as, for in- 
stance, the third cannon of the I Council of Constanti- 
nople and the twenty-eighth of Chalcedon were rejected 
by the Popes. 16 

As to the authority of a general council, it is evident 
that, if it deserves the name, its dogmatic decrees bind 
the whole Church, Oriental as well as Occidental. But 
the disciplinary decrees of Occidental councils, unless 
directly applied to the Oriental Church, are not intended 
for the latter. 17 But there is also another intent in can. 
228, § 1, that is to reject the pretention of Hus, 18 that 
every council called general obliges the whole Church, 
and especially to condemn the 29th thesis of Luther, 19 that 
it is allowed to reject or even rebel against the decrees 
of an ecumenical council. The same canon rejects the 
famous " conciliar theory," which, approved by Gerson, 
was a leading topic of discussion at the end of the four- 
teenth and the beginning of the fifteenth centuries, and 
culminated in the assertion of the superiority of a general 
council over the Pope, thus destroying the true idea of 



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18 Also the conciliar decreet of 18 Art. 5 (Dermnger, Enchiridion, 

the council of Basic (1431) were n. 551). 

not aJl ratified by the pope. " Denzinger, I. c, n. 653- 

it Can. 1 of our Code, 



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226 ECCLESIASTICAL PERSONS 

the papacy. 30 Hence no appeal is possible from the Pope 
to an ecumenical council. To admit such an appeal 
would, moreover, be tantamount to maintaining that a 
council can appeal to itself, since a general council is 
unthinkable without the supreme head. Wherefore Pope 
Zosimus (418) justly wrote to Aurelius, bishop of Car- 
thage, that the authority of the Apostolic See is so great 
that no one can revise its sentences. 21 

c 

Regarding the death of the Roman Pontiff during a 
council, Pius X established that as soon as the notice 
thereof should reach the council, wherever it be held, all 
sessions and meetings and enactments of decrees or can- 
ons should be immediately stopped, and nothing further 
done until the new Pontiff ordered its resumption and 
continuance. A council has no share in the election of 
the Pontiff, this prerogative being reserved to the 
Cardinals. 22 



MPiui II (who as Aeneas Sil- 21 Ep. 12 (Migne, ao, 676). 

Tius inclined to the same theory) 22 " Vacantc Scde Apostolic*,' 

" Execrabilis," Jan. 18, 1459; Cone, n. 38. 



Vatic, Scs*. IV, C 3. 



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CHAPTER III 

THE CARDINALS OF THE HOLY ROMAN CHURCH 

Pope Fabian (236-251) divided the (14) regions of 
Augustus into seven ecclesiastical districts, over which 
seven deacons should preside, who took care of the tem- 
poral affairs of the Church, With the growth of the 
number of the faithful the number of these diaconiae 
also increased. In the seventh century we read of dia- 
coniae monasterii, entrusted to monks, from among whom 
the superior of each diaconia or charitable institute was 
taken. Henceforth an indefinite number of regionary 
deacons appear, and their office or charge is designated 
according to the name of the church attached to each 
diaconia. Thus in the pontificate of Hadrian I (772- 
775) 18 such deacons are mentioned. In the eleventh 
century the deacons presiding over these institutes were 
called cardhiales diaconi} These formed a conspicuous 
part of the Roman clergy and were often employed for 
papal legacies and other important affairs. 

At the time of the same Pope, Fabian, and most prob- 
ably even earlier, there were in the city of Rome a num- 
ber (at first 28, later 48 or 49) churches (more particu- 
larly those built above the sepulchres of martyrs) which 
were called tituli, after the saint whose relics were there 
preserved, or for some other special reason {e.g., titulus 
pastoris, St. Pudenziana). Furthermore there were four 

1 Liber Pontificalix, ed. Duchesne, Regesta Pontif. Ron., 1906, I, 3 ff. 
1880, I, 148, 519, 53a, 364; Kthr, 

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principal churches, 9 which were considered baptismal 
churches and penitential churches, and around which the 
other churches or tituli with their clergy were grouped. 
For as each church had its clergyman, especially assigned 
to or incardinated into it, so the principal churches had 
their special or incardinated clergy, who had to serve 
there and nowhere else. Here we have the origin of the 
name " cardinal " ; it means a clergyman incardinated in 
a special church which enjoys a certain preeminence, and 
since the Church of Rome was considered the principal 
church among all the churches of the world, its clergy, 
especially those incardinated in one of the ancient tituli, 
took precedence over the rest in rank and dignity. To the 
Roman clergy employed in these titular churches, 
after the 16th century, 8 were reserved the title and rank 
of cardinals. 

Add to these cardinal deacons and cardinal priests the 
seven suburbicarian bishops, who since the time of Ste- 
phen III (768-772) were summoned to perform the litur- 
gical functions each week at the Lateran Basilica, 4 and 
you have the College of Cardinals. 

The energetic John VIII (872-882) employed the car- 
dinal clergy as counsellors, who had to meet at one or 
the other diaconia or church at least once a month, and 
twice a week at the papal palace in the Lateran. 8 Still 
more conspicuous and important grew the cardinal's office 
after Nicolaus II (1059) and Alexander III (1179) 
placed the papal election entirely into the hands of the 



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2 Pope Simplicius (468-483) praesepe was added to the three. 

"coDStituit ad S. Petruxn apostolum 3 There were "cardinals" also 

et ad S. Paulum apostolum et ad S. at Cologne. Hlnschius, K.-R., If 

Lauren tin m martyrem ebdoraadas ut 331 f. 

presbyteri manerent propter pen!- 4 Mabfllon, Mustum Italicvm, 

tentes et baptism um." Lib. Pont., 1724, II, 574. 

I, 240; later on S. Maria ad a Kehr, /. c, I, 6, 1;. 8. 



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CANON 230 239 

cardinals of the Roman Church. 6 Under Innocent III 
(1196-1229), after synods had come into disuse, the 
Cardinals formed a permanent consistory of the Pope, and 
were convoked two or three times a week, or as often as 
affairs were urgent. 

It was but natural that the precedence of Cardinals 
over other prelates should gradually manifest itself. At 
the Ilnd Council of Lyons (1174) they rank higher than 
archbishops and bishops; in the 14th century they pre- 
cede even the patriarchs. Two centuries later no prelate 
outside the college of Roman Cardinals was allowed to 
call himself cardinal. Finally, the Ccremoniale Cardi- 
naliutn (May 4, 1706) vindicated to the cardinals the 
title of Princes of the Holy Roman Church. 7 

The number of Cardinals differed at various times, 
according to the number of titular churches. The Coun- 
cil of Constance and Basle allowed only 24, but Sixtus V 
established 70, in imitation of the 70 seniors of the old 
Law, 14 deacons, 50 priests and six bishops. 8 

office and rank of cardinals 
Can. 230 

S. R. E. Cardinales Senatum Roman! Pontificis con- 
stituunt eidemque in regenda Ecclesia praecipui con- 

siliarii et adiutores assistunt. 

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D 

The Cardinals form the senate of the Roman Pontiff 
and are his main counsellors and helpers in the govern- 
ment of the Church. 

« C. 1, Diat. 33; c 6, X, I, 6; p. 462: Hinscfaius, I. c, 1, 319. 
Galante, Ftmtit luris Ccnonici, a " Postquam," Dec. 3. 15W; 

1906. p. 414 f. "Bcligiosa," April 13, 1587; Ga- 

TBangto, Dit Rom. Curit, 1S64. lante, /. c, 467 if. 



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230 ECCLESIASTICAL PERSONS 

Can. 231 

§ 1. Sacrum Collegium in trcs or dines distribuitur ; 
episcopalem, ad quem soli pertinent sex Cardinales 
dioecesibus suburbicariis praepositi ; presby teralem, 
qui constat Cardinalibus quinquaginta ; diaconalem, qui 
quatuordecim. 

§ 2. Cardinalibus ordinis presbyteralis ac diacona- 
lis suus cuique titulus aut diaconia in Urbe assignatur 
a Romano Pontifice. 

The Sacred College is divided into three orders : that 
of bishops, to which class the six suburbicarian prelates 
belong; that of priests, fifty in number; that of deacons, 
fourteen in number. 

Each of the cardinal priests and deacons has his own 
title or diaconia assigned to him by the Roman Pontiff. 

It is not necessary to enlarge upon the exalted office 
of cardinals. They are, as Eugene IV said, " the hinges 
upon which the government of the whole Church turns," ° 
or, as Sixtus V called them, the " two eyes of the Pon- 
tiff." 10 

The six suburbicarian bishoprics are : Porto S. Rufiiia, 
Albano, Palestrina, Sabina, Frascati, and Velletri. 11 The 
cardinal priests' titles are fifty different churches, to 
which, as said above, a certain number of clerics, among 
them a presbyter, were assigned. The deacons' churches 
were originally charitable institutions with oratories at- 
tached to them. 

The cardinals take solemn possession of their titles 
after they have been announced in the public consistory. 
They are, or were in former times, supposed to take raa- 

»"Non mediocri," 1439, 1 4. 11 Pius X, " Edita a Nobis/' 

10 " Postqaam," Dec. 3, 1586. May 5, 1914 (A. Af. S., VI, aiof.). 

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CANON 232 231 

terial care of their churches, juxta posse, 12 and enjoy a 
certain jurisdiction over the titular clergy." 

CREATION AND QUALIFICATIONS OF CARDINALS 



Can. 232 

§ 1. Cardinales libere a Romano Pontifice ex toto 
terrarum orbe eliguntur, viri, saltern in ordine pres- 
byteratus constituti, doctrina, pietate ac rerum agenda- 
rum prudentia egregie praestantes. 

§ 2. A cardinalatus dignitate arcentur: 

z.° Illegitimi, etiamsi per subsequens matrirnonium 
f ucrint leg it irnati ; itemque alii irreguiares vel a sacris 
ordinibus impediti secundum canonicas sanctiones, 
etsi cum ipsis auctoritate apostolica fuerit ad ordines 
et dignitates etiam episcopalem dispensatum; 

a. Qui prolem etiam ex legitimo matrimonio sus- 
ceptam, vel nepotem ex ea habent; 

3." Qui primo aut secundo gradu consanguinitatis 
alicui Cardinali viventi coniuncti sunt. 



Can. 233 

§ 1. Cardinales creantur et publicantur a Romano 
Pontifice in Consistorio sicque creati et publicati ob- 
tinent ius ad electionem Romani Pontificis et pri- 
vilegia de quibus in can. 239. 

§ 2. Si tamen Romanus Pontifex creationem alicuius 
in Consistorio annuntiaverit, eius nomine sibi in pec- 
tore reservato, sic promotus nullis interim gaudet 



12 The Liber Pontificalis records well known is the generosity of the 
many donations made by popes to late Cardinal Rampolla to S, Cc- 
their former titular churches, and cflia. 

1a Cf. can. 340, I a. 

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232 ECCLESIASTICAL PERSONS 

Cardinalium iuribus aut privileges, sed, postquam a 
Romano Pontiiice eius notnen publicatum fuerit, 
iisdcm fruitur a publicatione, iure vcro praeceden- 
tiae a reservatione in pectore. 

Can. 234 

Promotus absens a Curia debet in recipiendo bireto 
rubro iurare se intra annum, nisi legitimo detineatur 

impediments Summum Pontificem aditurum. 

Can. 235 

Nisi aliter in casibus particularibus fuerit a Sancta 
Sede provisum, per promotionem ad sacram purpu- 
ram non solum ipso facto vacant dignitates omnes, 
ecclesiae, beneBcia quae promotus possideat, sed etiam 
pensiones ecclesiasticae amittuntur. 



The dignity or office of a cardinal is of merely human 
or rather ecclesiastical institution, 14 but from time inline- 
morial was reserved exclusively to the Pope, although, as 
said above, a cardinal clergy existed also elsewhere. 15 
Hence the admission of so-called " crown cardinals" 
whom certain monarchs recommended to the Pope, was 
really nothing else but connivance on the part of the 
Holy See, and constituted no right in the strict sense of 
the word. The question put to the Cardinals in the 
secret consistory: " Placctne vobis," by which the Pope 
^-» seems to ask the consent of the patres purpurati already 

created, is a mere ceremony." 



u A solid doubt or controversy be maintained; cfr. Wernx, I. c, II, 

as to the ecclesiastical institution n. 624 (p. 706, ed. !•), 

of the cardinalate, as Smith, Eft- is C. 17, 6*, I, 6. 

ments. I, n. 488 insinuates, cannot 10 Wernz, /. c, n. 62S- 



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CANON 23s 233 

The qualifications required for the cardinalate are 
partly stated by the Council of Trent, 17 and partly in the 
Constitution "Postquam" of Sixtus V, Dec. 3, 1585. 
At present, in addition, the priesthood is absolutely re- 
quired. 

Excluded by law ( from which, however, the Pope may 
grant a dispensation) are the following: 

(a) Persons born of illegitimate wedlock, even though 
they be legitimated by the subsequent marriage of their 
parents, or rendered capable of holding ecclesiastical dig- 
nities by Apostolic dispensation ; hence the parents must 
have lived in lawful wedlock at the birth of the candidate. 

(b) Those who are irregular, either defectu or delicto, 
for the reception of sacred orders or for the exercise 
thereof, although made capable by Apostolic dispensation. 

(c) All persons who have legitimate or illegitimate 
offspring, male or female, or grandsons or granddaugh- 
ters; 

(d) Brothers who are either of the same parents or 
of one parent only : father's or mother's, brother's or sis- 
ter's sons (cousins-german), paternal or maternal uncles, 
and grandsons of either father's or mother's side cannot be 
cardinals at the same time. 1 * 

The mode of creating Cardinals is left to the Roman 
Pontiff. However, as a rule, the Pope creates them 
and publishes their names in a secret consistory, 18 at 
which only the Cardinals already created are de iure 
present, and from this moment the new cardinals begin 
to enjoy cardinalitial rights and privileges. In a sub- 



1T Sees. 24, c 1 de ref. modiSed the Constitution of Eu- 

11 " Poitqum," ft 17 f- icne IV, "In erainenti." Oct. a6. 

19 Pius V, Jan. 26, 1571; Gregory 143 1. 
XV, "Decet," March 12, 1622, 



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234 ECCLESIASTICAL PERSONS 

sequent public consistory, to which, among others, the 
diplomatic corps, dignitaries, clergy and laity are admit- 
ted, they receive the red hat and take the oath of fidel- 
ity to the Pope. 

A special mode, which was first made use of by Mar- 
tin V (1417-1431), is that of reserving a cardinal's name 
in petto; i. e., the Pope, by an act of his will, creates a 
cardinal, but for special reasons does not immediately 
publish his name. The one thus made a cardinal "in 
petto " must await publication before he can exercise 
the rights and prerogatives of a cardinal ; but his prece- 
dence dates from the time of the secret consistory when 
the Pope announced the reservation. Thus Pius IX, on 
March 18, 1875, created ?ivc cardinals "in petto." Had 
he died before making their names known, the five pur- 
purae would have died with him, had he not provided a 
means of carrying out his will by testament. However, 
this is an unsafe way, liable to cause dispute and con- 
fusion, and it is better that the names of such reservati 
be published before the Pope's demise. 30 

Persons promoted to the cardinalate while absent from 
Rome, generally receive the red biretta by' a special 
envoy, and upon receiving it must promise under oath 
to visit Rome within a year. 81 

What canon 235 states is nothing else but the general 
prohibition of a plurality of offices. However, concern- 
ing the loss of dignities, it is evident that the episcopal 
dignity is not forfeited, but rather exalted by the car- 
dinalate. though as to churches it must be noticed that 
a bishop promoted to the cardinalate only virtually, not 
actually, loses his bishopric, insofar namely, as the pope 
is entitled to keep him at his court if he deems fit. As 

20 Cfr. S*nti-Leitner, /. c, I, 11 " Poitquam," 9 19. 

31, n. »4 f. 



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CANON 236 235 

to benefices other than episcopal, they are lost ; hence also 
commendae seem, at least de iure, now lost as well as 



pensions. 22 



option 



Can. 236 

§ 1. Per optionem in Consistorio factam et a Summo 
Pontificc approbatam, possunt, scrvata prioritatc ordi- 
nis et promotionis, Cardinales ex ordine presbyterali 
transire ad alium titulum et Cardinales ex ordine 
diaconali ad aliam diaconiam et, si per integrum de- 
cennium in ordine diaconali permanserint, etiam ad 
ordinem presbyteralem. 

§ 3. Cardinalis ex ordine diaconali, transiens per 
optionem ad ordinem presbyteralem, locum obtinet 
ante omnes illos Cardinales presbyteros, qui post ipsum 
ad sacrac purpurae honorem assumpti sunt. 

§ 3. Suburbicaria si vacet sedcs, Cardinales ex or- 
dine presbyterali, qui momento vacationis praesentes 
fuerint in Curia vel ab ea absentes ad tempus ob sibi 
commissum negotium aliquod a Romano Pontifice, 
optare earn possunt in Consistorio, servata prioritate 
promotionis. 

§ 4. Cardinales quibus una ex ecclesiis suburbica- 
riis est assignata, aliam optare nequeunt; cum vero 
Cardinalis gradum Decani attigerit, dioecesim 6uam 
Ostiensi cumulat, quae proinde cum alia atque alia 
dioecesi suburbicaria in persona Cardinalis Decani 
semper coniungitur. 



12 It is a fact, as Weraz (/. e. t wherefore to combine both, we must 

II, n. 632) justly observes, that say that commendae possessed be- 

commandae were so far retained, fore promotion are lost, but may 

and can. 1398 itemi to confirm that be re*ohtained with the permission 

view; but our canon is absolute, of the Pope after promotion. 



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This canon deals with the right of option, i.e., the 
right of a Cardinal to choose a higher rank, or another 
church within the same rank of a better class or greater 
renown by reason of antiquity or distinction and in- 
come. This is especially the case in the suburbicarian 
bishoprics. Velletri has for centuries been united with 
Ostia, whose cardinal bishop always was and still is 
dean of the Sacred College. Pope Pius X, the solicit- 
ous pastor, rearranged the suburbicarian sees. He 
assigned suffragans to all of them (Velletri and Sabina 
had suffragans before) 2a with a salary of six thousand 
Lire ($1150), besides other rights and prerogatives. 
Four years later he separated Velletri from Ostia, which 
latter is no longer a suburbicarian see, but always in 
the hands of the Cardinal Dean. There being only six 
suburbicarian sees and six cardinal bishops, it happens 
that the Cardinal Dean is bishop of a real suburbicarian 
bishopric and at the same time bishop of Ostia. 24 The 
reason for this change is obvious. The Pope wished to 
remedy the frequent changes of the holders of these sees, 
which could only be achieved by uniting Ostia 25 with 
one of the six other sees and denying the right to all of 
the incumbents. Ostia having always been the privi- 
leged see to which the rank of dean was attached, it was 
natural that this see should not be suppressed, but made 
an additional title to one of the other suburbicarian sees : 
Porto S. Rufina, Albano, Palestrina, Sabina, Frascati, 
Velletri. Thus now the rank of dean does not depend 
on the see of Ostia, but solely on the time of promotion 
to a suburbicarian bishopric We may add that the suf- 



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J8 " Apostolicac Romanorum," (A. Ap. S., VI, 219 ff.)> 

April 15, igio (/4. Ap. S., II, 277 25 The diocese of Ostia Is in* 



ft. . significant as to population. 

t« " Edita a Nobis," May 5, 1014 



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CANON 237 237 

fragans of these six sees have again been abolished and 
the status quo restored. 89 



the sacred college as a corporation 
Can. 237 

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§ z. Sacro Cardinalium Collegio praeest Decanus, 
idest antiquior promotione ad aliquam sedem suburbi- 
cariam, cui tamen nulla est in ceteros Cardinales iuris- 
dictio, sed ipse primus habetur inter aequales, 

§ 2. Vacante decanatu, ipso iure succedit Subde- 
canus, sivc is tempore vacationis sit praesens in Curia, 
sivc in sua suburbicaria dioecesi commoretur, sive ab- 
sit ad tempus ob sibi commissum munus a Romano 
Pontifice. 



Since the time of Alexander III (1159-1181), when 
the cardinal clergy of Rome obtained the exclusive power 
of electing the Pope, 87 the tendency to corporative union 
among them asserted itself more and more. In course 
of time they also increased their independence and im- 
proved their material condition, 28 so that their revenues 
became far from insignificant. The temporal adminis- 
tration was in the hands of a chamberlain (camerlengo) 
elected by the body of cardinals, who, however, must not 
be confounded with the camerlengo of the Holy Roman 
Church. Their income was distributed twice a year 
among the cardinals de curia, including the papal legates. 
This distribution was called rotulus cardinalitius.™ Our 

88 Benedict XV. ■ Exactia," Feb. 29 Benedict XIV, " In regimine," 

x, 1915 {A. Ap. S., VII, 229 ff.)j Feb. 3, 1745, complains of cardinals, 

toe other enactments are left un- who are not dt curia, coming: to 

touched in the Code. Rome twice a year simply to re- 

2T C. 6, X, I, 6 de electione. ceive the rotulus; cfr. Bened. X ill. 

28 Ci. SagmaUer, TSttgkeit u. " Romani Pontificis," Sept 7, *7*4l 

Sttltung dtr Kardin&tt, 1896, p. Clement XII, "Pastorale officium" 

170 ff. Jan. 10, 1731. 



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238 ECCLESIASTICAL PERSONS 

Code is silent about the catntrrarius, whilst the dean and 
subdean are mentioned. It is a fact that the significance 
of the College as such, as well as the rotulus, have lost 
much of their former importance. 

DUTIES AND PBIVXLEGES OF CARDINALS 



Can. 238 

§ 1. Cardinales tenentur obligations residendi in 
Curia, nee fas est ipsis ab eadern discedere sine licen- 
tia Romani Pontificis, salvo praescripto §§ a, 3 huius 
canonis. 

§ 2. Haec obligatio urget quoque Cardinales Epi- 
scopos suburbicarios; sed ipsi non indigent licentia ut 
sese conferant ad dioeceses sibi commissas, quoties op- 
portunum iudicaverint. 

§ 3. Cardinales qui sunt Episcopi alicuius dioecesis 
non suburbicariae, lege residendi in Curia exirnuntur ; 
sed cum ad Urbem venerint, Summum Pontificem 
adeant, nee ab Urbe discedant antequam ab eodem 
abeundi licentiam impetraverint. 

The duty of residence follows from the nature of the 
cardinalitial office, the Cardinals being counsellors and 
assistants to the Sovereign Pontiff. 80 Although the sub- 
urbicarian cardinal bishops are bound by the law of re- 
siding in Rome, yet the Pope always grants them tacit, 
and now through the Code express permission to visit 
their dioceses, thus interpreting, not abolishing, the divine 
law of residence. 81 

What we said above concerning the loss of a bishopric, 
which naturally follows one's elevation to the cardinalate, 
is here corroborated. It is an implied dispensation from 

80 C. 17, 6°, I, 6. vereae," Sept. 3, 1746; Da Syn, 

81 Benedict XIV, "Ad uni- Dioec, VII, 1. 7. 



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CANON 239 239 

the law prohibiting a plurality of offices. Diocesan resi- 
dence is here preferred to residence in curie. 



Can. 239 

1. Praeter alia privilegia quae in hoc Co dice suis in 
titulis enumerantur, Cardinales omnes a sua promo- 
tione in Consistorio facultate gaudent: 

z.° Audiendi ubique t err arum confessiones ctiam 
rcligiosorum utriusque sexus ct absolvendi ab omni- 
bus peccatis et censuris ctiam reservatis, exceptis tan- 
tum censuris Sedi Apostolicae specialissimo modo 
reservatis et iliis quae adnexae sunt revelation! secreti 
S. Officii; 82 

2. Sibi suisque familiaribus 88 eligendi sacerdotem 
confessionibus excipiendis, qui, si iurisdictione careat, 
earn ipso iure obtinet, etiam quod spectat ad peccata 
et censuras, reservatas quoque, illis tantum censuris 
exceptis, de quibus in n. x ; 

3. Verbum Dei ubique praedicandi; 

4. Celebrandi vel alii permittendi ut coram se ct- 
lebret unam Missam in fcria V maioris hebdomadae 
ac tres Missas in nocte Nativitatis Domini; 

5. Benedicendi ubique, solo crucis signo, cum om- 
nibus indulgentiis a Sancta Sede concedi solitis, 
rosaria, aliasque coronas 3 * precatorias, cruces, numi- 
smata, statuas, scapularia a Sede Apostolica probata 
eaque imponendi sine onere inscription is; 

as This oath is imposed on the etuel, II, -0. n. 122. 

employees of the Holy Office and &+ Other corontt or rosaries are 

the S. C. Consistorialis; cfr. A. Ap. those of St. R rigid, of the Seven 

5"., I, 82. Sorrows of the B. V. Mary, and 

83 Familiares are those who ha- of the Immaculate Conception, the 

bitually serve cardinals or bishops corona Domini; cfr. Putaer, Com- 

as domestics and depend on them m*nt. in Facult. Apost., 1807, p. 

for their livelihood; cfr. Reiffen- J 5 5. 



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240 ECCLESIASTICAL PERSONS 

6.° Sub unica benedictione erigendi, in ecclesiis et 
oratoriis etiam privatis aliisque piis locis, stationcs 
Viae Cruris cum omnibus indulgentiis, quae huius- 
modi pium exercitium peragentibus impertitae sunt; 
nee non benedicendi pro fidclibus, qui causa infirm i- 
tatis vel alius legitimi impedimenti sacras stationes 
Viae Crucis visitare nequeant, Crucifixi icones 8D cum 
applicatione omnium indulgentiarum devoto exercitio 
eiusdem Viae Crucis a Romanis Pontificibus adne- 
xarum; 

7-° Celebrandi super a ram portatilem non solum in 
domo propriae habitationis, sed ubicunque degunt; et 
permittendi ut alia Missa, ipsis adstantibus, celebre- 
tur; 

8.° Celebrandi in mari, debitis cautelis adhibitis ; ** 

g.° In omnibus ecclesiis et oratoriis Missam cele- 
brandi proprio calendario conformem; 

io.° Fruendi altari privilegiato personali quoti- 
diano; 

ii.° Lucrandi in propriis sacellis indulgentias, ad 
quas acquirendas praescripta sit visitatio templi 
alicuius vel publicae aediculae civitatis seu loci, in 
quo Cardinales actu commorentur, quo privilegio 
etiam corum fam ilia res frui possunt; 

12. Benedicendi ubique populo more Episcoporum; 
sed in Urbe in ecclesiis tantum, piis locis et fidelium 
consessibus ; 

13. ° More Episcoporum gestandi crucem ante 
pectus etiam supra mozetam atque utendi mitra et 
baculo pastoral!; 

14. Sacrum celebrandi in quolibet privato sacello 

88 Cf . Putter, I. c, p. 366 f. ditiom arc mentioned in the Com- 

t* Cfr. can. 349, where the con- mcatvy. 



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CANON 239 241 

sine praciudicio illius qui indulto gaudet;" 

15. u Pontificalia cum throno et baldachino pera- 
gendi in omnibus ccclcsiis extra Urbem, Ordinario 
praemonito, si ecclesia sit cathedral is ; 

16. Honoribus locorum Ordinariis tribui solitis 
fruendi quocunque se conferant; 

17. Fidem faciendi in foro externo, de oraculo pon- 
tificio tcstantes ; *• 

18. ° Fruendi sacello ab Ordinaiii visitatione ex- 
empto ; 

19. "' De reditibus beneflciariis libere disponendi 
etiam per testamentum, salvo praescripto can. 1298; 

20. Consecrationes et benedictiones ecclesiarum, 
altarium, sacrae suppellectilis, Abbatum aliasve si- 
miles, excepta oleorum sacrorum consecrations si 
Cardinalis charactere episcopali careat, ubique loco- 
rum, servatis servandis, peragendi, firmo praescripto 
can. 1 157; 

21. Praecedendi omnibus Praelatis etiam Patri- 
archis, immo ipsis Legatis Pontinciis, nisi Legatus sit 
Cardinalis in proprio territorio residens; Cardinalis 
autem Legatus a latere praecedit extra Urbem omni- 
bus aliis; 

2a. Conferendi primam tonsuram et ordines mi- 
nores, dummodo promovendus habeat dimissorias 
proprii Ordinarii litteras; 

23. ' Ministrandi sacramentum confirmationis, firmo 
onere inscriptionis nominis confirmati ad normam 
iuris;" 

24. Concedendi indulgentias ducentorum dierurn, 



Q 



S7 Hence the chaplain may say orally by the pope, but testified to 

another Mass, at which those en- by a cardinal, may be vindicated 

dowed with the indult may assist t also in foro externo. 

as well as at that o£ the Cardinal. SB Cfr. can. 798 f. 



a 

SI Cfr. can. 79; a privilege given 



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ECCLESIASTICAL PERSONS 






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ctiam toties quoties lucrandas, in locis vcl institutis 
ac pro personis suae iurisdictionis vel protcctionis ; 
item in aliis locis, sed a praesentibus solummodo, 
singulis vicibus, lucrandas. 40 

§ 2. Cardinalis Decanus gaudet privilegio ordinandi 
et consecrandi electum Pontificem, si hie ordinatione 
vel episcopali consecratione indigeat, et tunc pallio 
utitur; quod privilegium, absente Cardinali Decano, 
competit Subdecano, eoque etiam absente, antiquiori 
Cardinali Episcopo suburbicario. 

§ 3. Demum Cardinalis Proto-diaconus pallia Archi- 
episcopis et Episcopis privilegio fruentibus eorumve 
procuratoribus, vice Romani Pontificis, imponit; et 
nomen novi electi Pontificis populo annuntiat" 

To this specific, though not quite exhaustive, 42 enu- 
meration of privileges we add the insignia of cardinals: 

(1) The red hat granted by Innocent IV (1245) to 
cardinals of the secular and by Gregory XIV (1591) also 
to those of the regular clergy; 

(2) The red biretta, in use probably since Paul II 
(1464) ; 

(3) The red mantle or sacred purple, in use since 
Boniface VIII. The Cardinals of the regular (ex- 
empt) clergy, with the exception of the Society of 
Jesus/ 8 retain in their dress the color of their order. 



40 This would mean that those 
present in the places subject to the 
jurisdiction of the Cardinal could 
gain the indulgence as often as the 
Cardinal would grant it, even sev- 
eral times in one day, nay that the 
indulgence would, as it were, be 
attached to the place itself; whilst 
outside the institutes of (heir pro- 
tection or jurisdiction, this indul- 
gence could be gained only once a 



day by those personally present. 

41 The announcement is made by 
the cardinal deacon from the bal- 
cony of St. Peter's, which ii di- 
rected towards the piazxa. 

42 Other privileges are mentioned 
in can. 2327, 2341-44. 

«a The former cardinal Vaszary 
of Hangary, O.S.B., had the priv- 
ilege of wearing the purple dress. 



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CANON 240 243 

In the seasons of Advent and Lent the crimson gives 
way to violet. 

(4) The title "Eminence/ 1 or eminentissime princeps, 
was so strongly insisted on by Urban VII, that a refusal 
to acknowledge it was held sufficient to cause a break 
of diplomatic relations. 44 

RIGHTS OF CARDINALS IN THEIR TITLES AND SEDE 

VACANTE 

Can. 240 

§ 1. Cardinalis ad sedem suburhicariam promotus 
et in eiusdem possessionem canonice immissus est ve- 
rus Episcopus suae dioecesis, eaque potestate in earn 
pollet, quam Episcopi residentiales in propria dioecesi 
obtinent. 

§ 2. Ceteri Cardinales in suis titulis vel diaconiis, 
postquam eorundem canonicam possessionem ceperint, 
omnia possunt quae locorum Ordinarii in suis ecclesiis, 
exceptis ordine iudiciorum ct qualibet iurisdictione in 
fideles, sed salva potestate in iis quae ad disciplinary 
morum correctionem, servitium ecclesiae pertinent. 

§ 3. Cum throno et baldachino Cardinalis ordinis 
presbyteralis potest in suo titulo pontificalia peragere 
et Cardinalis ordinis diaconalis in sua diaconia ponti- 
ficaliter assistere, et nemo alius ibidem id potest sine 
Cardinalis assensu; in aliis vero Urbis ecclesiis Cardi- 
nales throno et baldachino uti nequeunt sine licentia 
Romani PontiBcis. 



The obligations and privileges attached to the suburbi- 
carian sees, whose incumbents are bishops or ordinaries 

a 

44 Decree of June 10, 1630. 



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344 ECCLESIASTICAL PERSONS 

in the true sense of the word, have been defined by Paul 
IV and lately by Pius X. w 

As to § 2 it should be remembered that Cardinals for- 
merly" enjoyed a quasi-episcopal jurisdiction in their 
respective titles. This, however, was limited by Innocent 
XII in his Constitution "Romanics Pontifex" of Sept. 17, 
1692, to what now remains : a domestic or paternal power, 
which consists in admonition and the infliction of pen- 
alties that require no trial, and in the proper maintenance 
of the divine service. 

Regarding the right of pontificals note that even the 
Cardinal Vicar of Rome, if he wishes to pontificate in 
one of the titular churches, needs the consent of the Car- 
dinal to whom the title belongs, as was solemnly decided 
by Leo XIII in the case of the Basilica Eudoxiana (S. 
Pietroin Vincoli)." 

c 

Can. 241 

Sede Apostolica vacante, Sacrum Cardinalium Col- 
legium et Romana Curia non aliam habent potestatexn, 
quam quae definitur in const. Pii X Vacante Sede Apo- 
stolica, 25 Dec. 1904. 

The powers which the Sacred College of Cardinals and 
the Roman tribunals enjoy during the vacancy of the 
Apostolic See are defined by Pius X in the Constitution 
" Vacante Sede Apostolica," Dec. 25, 1904, which deter- 
mines that 

(1) All the powers which require the express approval 

■ 

45 "Cum vencrabilia," Aug. 22, ligiota," April 13, 1589; Fagnlni, 

■555: Pius X, "Apostolicae in c. cit. 11, n. 19 ft. 
Romanoruni," April 15, 1909 (A. 47 Jan. 30, 1879; S. Rit. C, Sept. 

Ap. S., II, 277 ff. 15, 1668; Dec 1903; Santi-Leilner, 

« C 11, X, I, 33; Sixtui V, " Re- I. A, I, 31, n. 34 ff. 



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CANON 241 245 

of the Pope, 1. e. f such as cannot be exercised except 
verbo facto cum Siho" or £-*• audientia SSmi." or 
vigors spccialium et extraordinariarum facultatum/* 
are suspended ; 

(2) That the ordinary faculties remain, but should not 
be made use of except in cases of minor importance, or 
in more important cases which suffer no delay; and in 
the latter the matter should be entrusted to the Car- 

i 

dinal Prefect and some Cardinals of that Congregation 
which would probably decide, but their decision should 
be only provisional, until a new Pontiff is elected. 4 * 

41 Contt at., nn. 22-35. 



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CHAPTER IV 

THE ROMAN COURT 

c 
S 

It is evident that the Sovereign Pontiff is unable to 
provide personally for all the needs of the universal 
Church. His coadjutors are the bishops and members 
of what is known as the Papal Court, — Curia Romana, 
from the habitual residence of the Pope. 

The name curia is derived either from the Latin cura 
(care) or quirts (Roman citizen), and signifies either the 
temple around which the curiae romanae gathered, or the 
place where the senate assembled to look after the public 
welfare, as Varro insinuates. 1 

The term Curia Romana has a threefold meaning: (a) 
in the strict sense it comprises the Sacred Congregations, 
tribunals, and offices to which the business of the whole 

a. ' 

Church is entrusted ; (b) in a wider sense it embraces not 
only the three above-mentioned dicasteria but also the so- 
called familia pontiUcia, which consists of the servants 
and coadjutors of the Papal Court as well as honorary 
prelates and knights, (c) In the strictest sense it com- 
prises only the so-called curiales or minor officials — law- 
yers, notaries, procurators, speditori, agents, 2 etc. In 
what sense the term is used, must be determined in each 
instance from the context. 



i Cfr. Forcellini, Lexicon, m. v, Kuric, 1896. p. 4 (English, New 
** Curia." York 1907). Lega, in Annal. E -■■ /., 

1 Bangen, Dig Romischa C*ri», 1896, t. 4, p. 46; A. Ap. S., I, 8. 
i854* P 7; Hilling, Dis Rom. 

246 



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CANON 242 247 

Historically the Curia Romana developed pari passu 
with the Papal State and power. The term " curia " was 
almost unknown up to the 12th century, 3 when it occurs 
in the so-called Ordo Romanus X. But the rapid growth 
of the papacy during the three subsequent centuries 
created tribunals of far-reaching influence, especially the 
Chancery, the Dataria, and the Rota Romana, the Secre- 
tary Nepos who was later merged with the Secretary of 
State, and a host of minor offices {ofUcia vacabUia). 
Still it was only after the Council of Trent (1545-1563) 
that the Curia Romana in its present-day sense was com- 
pleted. Pius IV and his successors, especially Sixtus V 
(1585-1590), created the Roman Congregations, upon 
which devolved the burden of supervising the ordinary 
affairs of the universal Church. The policy established 
under Julius II (1503-1513) drew the various civil gov- 
ernments, now awakening to national consciousness, into 
diplomatic relations with the Papal Court. 4 All this en- 
hanced the splendor of the papacy, and at the same time 
increased the legislative and administrative activities of 
the Curia. Hence it is not surprising that the Cardinals 
began to assert their importance at the court and in the 
special congregations and tribunals. 

Of these we shall now treat, as reorganized by Pope 
Pius X .• 

Can. 242 

- 

a 

Curia Romana constat Sacris Congregationibus, 
Tribunalibus et Ofnciis, prout inferius enumerantur 
et describuntur. 

s 

■ 

• "Exit demnus papa de palatio 4 Sixtui V, " Immenia," Jan. 22, 

cum epiacopis ct cardinalibua, et 1587. 

cum toto apparatu curiae." Mabil- 5 *■ Sapient! coniQio," June *9. 

Ion, Museum Itolicttm, 1724, II, p. 1908. 
97; Migne, P. L„ 78, 1009. 



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248 ECCLESIASTICAL PERSONS 

Can. 243 

§ 1. In singulis Congregationibus, Tribunalibus, 
Officiis servanda est disciplina et tractanda sunt ne- 
gotia secundum normas turn generates turn particu- 
lars, quas ipsis Romanus Pontifex praestituerit. 

§ 2. Omnes qui ad Congregationes, Tribunalia, 
Officia Romanae Curiae pertinent, ad sec return ser- 
vandum tenentur intra fines et secundum modum ex 
disciplina unicuique propria determinatum. 

Can. 244 

§ 1. Nihil grave aut extra orclinarium in iisdem Con- 
gregationibus, Tribunalibus, Officiis agatur, nisi a 
Moderatoribus eorundem Romano Pontifici fuerit 
ante Bignificatum. 

§ 2. Gratiae quaevis ac resolutiones indigent pon- 
tificia approbations exceptis iis pro quibus eorundem 
Officiomm, Tribunalium, Congregationum Modera- 
toribus speciales facilitates tributae sint, exceptisque 
sententiis Tribunals Sacrae Romanae Rotae et Si- 
gnaturae Apostolicae. 

Can. 245 

Controversiam, si qua exoriatur. de competentia 
inter Sacras Congregationes, Tribunalia vel Offtcia 
Romanae Curiae, dirimit coetus S. R. E. Cardinalium, 
quos Romanus Pontifex singulis vicibus designaverit 



The Code adopts the general arrangement made by 
Pius X in his Constitution " Saplenti coftsilio," June 29, 
1908, which was followed by the " Ordo Servandus in 
Romana Curia." • The duty of secrecy is severest for the 



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CANON 245 249 

members of the " Holy Office," who are bound to it under 
penalty of excommunication most especially reserved to 
the Holy See. T 

The so-called routine or system observed at the Curia 
we need not set forth here. But it may not be amiss 
to cite chapter X of the H Ordo," a which ordains that 
any Catholic may have recourse to the offices of the 
Curia, either personally or by means of an agent chosen 
from among those approved by the Curia. 

Ordinaries may treat with the Curia either personally 
or by mail. If an Ordinary wishes to negotiate without a 
lawyer, he must direct his petition to the respective Con- 
gregation, Tribunal or Office, where note is taken thereof 
with the accompanying words : personalis pro ordinario. 
But if he wishes to employ the services of an agent or 
lawyer, he is obliged to take one of those approved by 
the Curia. 

As to the agents of the bishops, the same " Ordo " pre- 
scribes that they must be Catholics of good reputation and 
know Latin and Canon Law. If the agent is a priest, or 
at least in sacred orders, he must have permission from 
the Cardinal Vicar to reside in Rome. One who wishes 
to be approved as an agent must submit a petition to the 
assessor of the S. C. Consistorialis. If admitted, his 
name is placed upon the list of official agents.' There are 
many experienced agents in Rome from among whom 
the Ordinaries may choose. 

Can. 245 is an entirely new enactment. Formerly the 
Signatura Apostolica had power to settle all controversies 
about competency, which were quite frequent when the 
" Sapienti consilio " first went into effect. 

T A. Ap. S., I, p. 8a f. • lb., p. 49 f. 

•«.. P. 53 U 



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ART. I 

THE SACRED CONGREGATIONS 

Sixtus V instituted fifteen congregations; 10 but in 
course of time some were overburdened, while others lost 
their importance. This led Pius X to issue a Constitu- 
tion which treats minutely of the reorganization of the 
Roman Court 11 (Curia in the strict sense). This order 
was to remain in force, and, despite the difficulties arising 
from the competency of various Congregations, has re- 
mained in force with only one exception, made by the 
present pontiff, Benedict XV, in his allocution of March 
22nd, 1917, when the Congr. of the Index was suppressed, 
or rather combined with the Holy Office, whilst the de- 
partment of Indulgences, formerly attached to the Holy 
Office, was joined to the S. Poenitentiaria. 12 Besides 
this, Benedict XV has given a fuller title to the S. C. of 
Studies. 



Can. 246 

Singulis Congregationibus praeest Cardinalis Prae- 
fectus vel, si eisdem praesit ipsemet Romanus Ponti- 
fex, eas dirigit Cardinalis Secretarius; quibus ad- 
iunguntur Cardinales quos Pontifex eis adscribendos 
ccnsuent, cum aliis necessariis administris. 

a 

THE HOLY OFFICE 

a 

This Congregation developed from the Inquisition. 
Its first traces are discernible in the canons issued by 
Lucius III, a. d. 1 184, against the Waldenses and Albi- 
genses. The civil authority (Frederick II and Louis IX) 



10 M Immwia." Jan. n, 1587- It " AmpliMimum collegium '* (A. 

11 " Sapieoti coiuilio," Juno 29, Ap. S., IX, 161 ff.). 
1908 (A. Ap. S., I, 7 ff.) 



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CANON 247 251 

lent their assistance to the Church in combatting these 
heretics, and the Dominicans were chiefly entrusted with 
the unpleasant task of prosecution and procedure. Pope 
Paul III established the " Supreme Universal Inquisition " 
(1542) and Sixtus V added it to the Roman Congrega- 
tions. Paul IV (1559) and Pius IV (1564) added the 
Index Commission to the Holy Office." 



Can. 247 

§ 1. Congregatio S. Officii, cui ipse Summus Pon- 
tifcx praeest, tutatur doctrinam fidei et morum. 

§ 2. Iudicat de iis delictis quae sibimet secundum 
propnam eiusdem legem reservantur, cum potestate 
has criminales causas videndi non solum in gradu ap- 
pellations a tribunali Ordinarii loci, sed etiam in 
prima instantia, si directe ad ipsam delatae f uerint. 

§ 3. Ipsa sola cognoscit ea quae, sive directe sive 
indirecte, in lure aut in facto, circa privilegium, uti 
aiunt, Paulinum et matrimonii impedimenta dispari- 
tatis cultus et mixtae religionis versantur ; itemque ad 
earn spectat facultas dispensandi in hisce impedimentis. 
Quare quaelibet huiusmodi quaestio ad hanc Congre- 
gationem est deferenda, quae tamen potest, si ita 
censeat et casus ferat, quaestionem remittere ad aliam 
Congregationem vel ad Tribunal Sacrae Romanae 
Rotae. 

§ 4. Ad eandem pertinet non solum delatos sibi 1 i- 
bros diligenter excutere, eos, si oportuerit, prohibere, 
et dispensationes concedere ; sed etiam ex officio inqui- 
rere, qua opportuniore licebit via, quae in vulgus edan- 
tur scripta cuiuslibet generis damnanda, et in memo- 
is Cf. Hilling, Procedurt of the Index as a special congregation ; now 
Roman Court. 1907, p. 54 fl Piua it is again attached to the Holy 
V and Sixlus V had established the Office. 



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252 ECCLESIASTICAL PERSONS 

nam Ordinariorum reducere, quam religiose teneantur 
in perniciosa scripta animadvertere eaque Sanctae Sedi 
denuntiare, ad normara can. 1307. 

§ s. Ipsa una competens est circa ea omnia quae 
ieiunium eucharisticum pro sacerdotibus Missam cele- 
brantibus rcspiciunt. 

T 

The Holy Office, therefore, is competent in matters 
of faith and morals, and whatever touches the so-called 
privilegium Paulinum and the impediments of duparitas 
cultus and mixtae religionis; from which impediments it 
has the power to dispense. All such matters must be re- 
ferred to that Congregation, which, however, may, if it 
thinks it opportune and the case permits, refer the ques- 
tion to another Congregation or to the tribunal of the 
S. R. Rota. 

The Holy Office also acts as judge or censor of books, 
either allowing them to be published or condemning them, 
and this Congregation alone is competent to decide ques- 
tions regarding the Eucharistic fast of priests celebrating 
Mass. 

THE CONSIST0RIAL CONGREGATION 

As its name implies, this Congregation was instituted 
for the purpose of preparing the matter to be discussed 
and decided in consistory or meeting of the Cardinals 
with the Sovereign Pontiff. The subjects chiefly treated 
in these meetings were the erection of higher benefices 
and the provision of consistorial benefices. The present 
importance of this Congregation is due to the reorganiza- 
tion of the Curia by Pius X. 



Can. 248 
§ 1. Congregations Consistorialis Praefectus est 



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CANON 248 253 

ipse Romanus Pontifex. Practer alios ad eandem per- 
tinent ex officio Cardinales Secretarius S. Officii, Prae- 
fectus Congregations de Seminariis et Universitatibus 
studiorum et Secretarius Status. Inter Consultores 
eiusdem semper sunt Assessor S. Officii, Secretarius 
Congregationis pro negotiis ecclesiasticis extraordina- 
riis et Secretarius Congregationis de Seminariis et 
Universitatibus studiorum. 

§ 2. Ad hanc Congregationem spectat non modo pa- 
rare agenda in Consistoriis, sed praeterea, in locis 
Congregationi de Prop. Fide non obnoxiis, novas dioe- 
ceses ac provincias et capitula turn cathedralia turn 
collegialia constituere ; dioeceses iam constitutes divi- 
dere; Episcopos, Administratores Apostolicos, Coadiu- 
tores et Auxiliares Episcoporurn constituendos pro- 
ponere, canonicas inquisitiones seu processus super 
prornovendis indicere actosque diligcnter expendere, 
ipsorum periclitari doctrinam, salvo praescripto can. 

355- 

§ 3. Ab hac Congregatione dependent ea omnia quae 
pertinent ad constitutionem, conservationem et statum 
dioecesium. Quare ipsa vigilat super impletis vel 
minus obligationibus, quibus Ordinarii tenentur; co- 
gnoscit ea quae ab Episcopis scripto relata sint de statu 
suarum dioecesium ; indicit visitationes apostolicas 
exarninatque eas quae fuerint absolutae, transmissis in 
utroque casu ad singulas Congregationes iis ad delibe- 
randum negotiis quae ad eas peculiariter pertinent. 



On the Consistorial Congregation at present devolves 
not only the preparation of matter for the consistories, 
but also, in places not subject to the S. C. Prop. Fide, the 
erection of new dioceses, provinces, cathedral and collegi- 
ate chapters; the division of dioceses; the proposal of 



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254 ECCLESIASTICAL PERSONS 

bishops, Apostolic administrators, episcopal coadjutors 
and auxiliaries, and the so-called processus informativus. 
To this congregation also belongs whatever pertains to 
the constitution, preservation, and state of the various 
dioceses. It sees to it that the obligations of the Ordi- 
naries are complied with ; takes cogni2ance of the written 
report of the dioceses by the bishops, etc. 

the congregation op the sacraments 
Can. 249 

§ i. Congregationi dc disciplina Sacrarnentorum pro- 
posita est universa legislatio circa disciplinam septem 
Sacrarnentorum, incolumi iure Congregations S. Of- 
ficii circa ea quae in can. 247 statuta sunt, et Sacro- 
rum Rituum Congregationis circa ritus ct caeremonias 
quae in Sacramentis confkiendis, ministrandis et reci- 
piendis servari debent. 

§ a. Ad illam itaque spectant ea omnia, quae de- 
cern! concedique solent turn in disciplina matrimonii, 
turn in disciplina aliorum Sacrarnentorum nee non in 
celebratione Sacrificii Eucharistici, iis tantum exceptis 
quae aliis Congregationibus reservata sunt. 

§ 3. Ipsa cognoscit quoque et exclusive de facto 
inconsummationis matrimonii et de exsistentia causa- 
rum ad dispensationem concedendam, nee non de iis 
omnibus, quae cum his sunt connexa. Potest tamen 
cognitionem horum omnium, si id expedire iudicaverit, 
ad Sacram Romanam Rotam remittere. Pariter ad 
earn deferri possunt quaestiones de validitate matri- 
monii, quas tamen, si accuratiorem disquisitionem aut 
investigationem exigant, ad tribunal competens remit- 
tal Eodem modo ad ipsam pertinet videre de obliga- 
tionibus ordinibus maioribus adnexis, atque examinare 



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CANON 249 255 

quaestiones de ipsa validitate sacrac ordinationis, aut 
eas ad tribunal compctcns remittcre. Et ita porro dc 

aliis Sacramcntis. 



The S. Congregation of the Sacraments is entirely new. 
This Congregation is occupied with whatever concerns 
the seven Sacraments, with the exception of what belongs 
to the jurisdiction of the Holy Office and the Congre- 
gation of Rites. 

To it also is referred whatever pertains to the decision 
and granting of dispensations in matters of marriage and 
other Sacraments. This Congregation is alone competent 
to decide whether a marriage is consummated, whether 
the reasons for granting a dispensation truly exist, and 
all matters connected therewith. However, if it deems 
it expedient, it may refer any matter to the S. R. Romana. 
To the Congregation of the Sacraments may be reported 
questions concerning the validity of matrimony, but it 
will refer these to the competent tribunal if a more ac- 
curate examination or investigation is required. This 
Congregation is also competent to investigate the obliga- 
tions arising from higher orders and to examine the 
validity of ordination or remit such cases to the competent 
tribunal. According to the " Sapicnti Consilio" to the 
S. Congregation of the Sacraments must be addressed the 
following petitions : 

( 1 ) Concerning the preservation of the Blessed Sacra- 
ment in oratories which otherwise would not enjoy that 
privilege ; 

(2) Concerning the celebration of Mass in the open air, 
or on board a vessel, before dawn or after noon, or on 
Holy Thursday ; 

(3) Concerning the privilege of saying Mass de Beata 
or requiem on acccount of eye trouble; 



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St 

(4) Concerning the privilege of private oratories with 
the right of having Mass said there. 

Besides, as is plain from the text, this S. Congregation, 
perhaps the most occupied of all, is competent to grant 
dispensations from impediments of a public character, to 
rich and poor, so that " in forma pan per urn n no longer 
pertains to the S. Poenitentiaria. 



■ 



THE S. CONGREGATION OF THE COUNCIL 

This Congregation was originally known as "S. Con- 
gregatio Cardinalium Concilii Tridentini Interpretum" 
It was instituted by Pius IV, Aug., 1564, and was charged 
with the execution of the reform decrees of the Council 
of Trent, to which Pius V added that of interpreting 
authentically the Tridentine decrees and settling contro- 
versies arising in connection therewith. The importance 
of this Congregation has diminished considerably since 
the S. C. of the Sacraments was established. 

Can. 250 

§ i. Congregationi Concilii ea pars negotiorum est 
commissa, quae ad universam disciplmam clcri saecu- 
laris populique christiani refertur. 

§ 2. Quamobrem ipsius est curare ut christianac vitae 
praecepta serventur, cum facilitate opportune ab cis- 
dem fideles dispensandi; rnoderari quae parochos et 
canonicos spectant; aut quae pias sodalitates, pias 
uniones (etiamsi dependeant a religiosis vel erectae sint 
in cor urn ecclesiis seu domibus), pia legata, pia opera, 
Missarum stipes, beneficia aut officia, bona ecclesia- 
stica, mobilia et immobilia, tributa dioeccsana, taxas 
curiarum episcopalium aliaquae huiusmodi attingunt 
Eidem reservata est facultas eximendi a conditionibus 



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CANON 250 257 

requisitis ad assecutionem beneficioruni, quoties ad Or- 
dinarios coram collatio spectat; admittendi ad cora- 
positionem eos qui occuparunt bona ecclesiastica, etiam 
pert inentia ad reli giosos ; permittendi ut fidcles acqui- 
rant bona ecclesiastica, a potestate civili usurpata. 

§ 3- Videt quoque de iis omnibus, quae ad imrnunita- 
tem ecclesiasticam pertinent, itemque de controversiis 
circa praecedentiam, salvo iure Congregationis de 
sodalibus religiosis et Congregationis Caeremonialis. 

§ 4. Ad candem pertinent ea omnia quae ad Concili- 
orum celebrationem et recognitionem atque ad Episco- 
porum coetus seu conferentias referuntur, extra loca 
quae subsunt Congregationi de Prop. Fide. 

§ 5. Est autem haec Congregatio competens in 
omnibus controversiis negotia eidem commissa spec- 
tantibus, quas in linea disciplinari pertractandas cen- 
suerit ; cetera ad tribunal competens sunt def erenda. 

This Congregation, therefore, is competent in admin- 
istrative matters pertaining to the secular clergy and to 
confraternities, beneficiary provisions, immunities, prece- 
dence. Besides it grants permission to hold councils, the 
documents and decrees of which must be submitted to it 
for approbation. 

the s. congregation of religious 
Can. 251 

§ 1. Congregatio negotiis religiosorum sodalium 
praeposita ea sibi exclusive vindicat quae respiciunt 
regimen, disciplinam, studia, bona et privilegia religi- 
osorum sodalium utriusque sexus turn sollemnibus turn 
simplicibus votis adstrictorum, eorumque qui, quam- 
vis sine votis, in communi tamen vitam agunt more 



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258 ECCLESIASTICAL PERSONS 

religiosorum, itemquc tertiorum Ordinum saccular ium, 
incolumi iurc Congregationis dc Prop. Fide. 

§ 2. Quapropter, quacstionibus ordine iudiciario 
tractandis ad tribunal competens remissis et incolumi 
semper iure Congregationis S. Officii et Congregationis 
Concilii circa negotia ad ipsas spectantia, haec Con- 
gregatio quaestiones omncs suae coir.petentiae in linea 
disciplinari dirimit; sed si quaestio vertatur inter re- 
ligiosum sodalem et personam non religiosam, ipsa, 
praesertim ad instantiam partis, potest quoquc. si 
aequum iudicaverit, eandem quaestionem ad aliam 
Congregationem aut tribunal remittere. 

§ 3. Huic denique Congregationi reservatur conces- 
sio dispensationum a iure communi pro sodalibus religi- 
osis, finno praescripto can. 247, § 5. 



- 



The S. Congregation of Religious is exclusively com- 
petent in whatever concerns the government, discipline, 
studies, property and privileges of religious of both sexes, 
either with solemn or simple vows, as also of such as have 
no vows but live a common life like religious, and of 
secular tertiaries. 

Wherefore, with the exception of judiciary matters to 
be referred to the competent tribunals and of whatever 
pertains to the Holy Office and the S. C. of the Council, 
this Congregation settles all disciplinary questions belong- 
ing to its competency. To this Congregation is also re- 
served the granting of all dispensations to religious. 

Formerly there existed a S. C. Episcoporum et Regu- 
larium, which had great authority and was probably in- 
stituted by Pius V ; at least its regesta run from the end 
of the year 1572 and embrace a threefold division of 
cases: Episcoporum, Regulariutn, Monialium. The ma- 



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CANON 252 259 

terial was almost entirely collected by the Benedictines of 
St. Anselm's College when the reorganisation was ef- 
fected but for some reason or another the Collectanea 
were never published. 

u 

THE S. CONGREGATION OP THE PROPAGANDA 



tt 



Since the Catholic Church began to spread across the 
seas, to the East and West Indies, and established mis- 
sions in the countries newly added to its jurisdiction, she 
has taken particular care of these. Peculiar conditions 
called for special legislation, which was adapted to the 
tcrrae missionum " as distinguished from the provinces 
of the regular hierarchy. In order to insure an orderly 
and stable procedure in the transaction of missionary mat- 
ters Gregory XV, in 1622, founded this Congregation. 14 
By Clement IX (1720) the same was entrusted with the 
revision of the books of Orientals. Pius IX reformed 
the Propaganda and created a new section " pro negotiis 
ritiis orientalis" (1862), now detached. 

The competency of the Propaganda is locally circum- 
scribed by the so-called " mission territories." Several 
countries which formerly were subject to its jurisdiction 
(the U. S., England, Ireland, Scotland, Holland, Luxern- 
berg, Canada) are now withdrawn from it and placed 
either under the regular hierarchy or among the " prov- 
inces of the Apostolic See." 



Can. 252 

§ 1. Congregatio de Propaganda Fide missionibus ad 
praedicandum Evangelium et catholicara doctrinam 

l* " Inscrutabili divinae," June ing of missionaries; it is entirely 
22, 1622. Urban VIII erected the under the S. C. Prop. Fide. 
Collegium Urbanum for the train- 



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2<5o ECCLESIASTICAL PERSONS 

praecst, ministros necessarios constituit ct mutat, fa- 
cultatemque habet tractandi, agcndi et exaequendi 
omnia hac in re necessaria et opportuna. 

§ 2. Curat ea omnia quae ad Conciliorum celebra- 
tionem in locis sibi subiectis pertinent. 

§ 3. Eius iurisdictio lis est circumscripta regiom- 
bus, ubi, sacra hierarchia nondum constitute, status 
missionis perseverat. Huic Congregation! sunt etiam 
subiectae regiones, quae, etsi hierarchia inibi consti- 
tuta sit, adhuc inchoatum aliquid praescfcrunt. Eidem 
pariter subsunt societates ecclesiasticorum ac Semi- 
naria quae exclusive fundata sunt eo fine, ut in eis 
instituantur missionarii pro exteris missionibus, prae- 
sertim quod attinet ad eorum regulas, administratio- 
nem atque opportunas concessiones ad sacram ordina- 
tionem alumnorum requisitas. 

§ 4. Haec autem Congregatio tenetur ad competen- 
tcs Congregationes deferre negotia quae aut fidem at- 
tingunt, aut causas matrimoniales, aut generales nor- 
mas circa sacrorum rituum disciplinam tradendas vel 
interpretandas. 

§ 5. Quod vero spectat ad sodales religiosos, eadem 
Congregatio sibi vindicat quidquid religiosos qua mis- 
sionarios, sivc uti singulos sive simul sumptos, tangit. 
Quidquid vero religiosos qua tales, sive uti singulos 
sive simul sumptos attingit, ad Congregationem reli- 
giosorum negotiis praepositam remittat aut relinquat. 



Q 



This Congregation presides over the missions, provides 
them with ministers, and has power to do whatever it 
deems necessary for their benefit. 

Its jurisdiction is restricted to provinces which as yet 
have no hierarchic constitution, but are still in the mis- 
sionary state. To it are subject also those regions in 



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CANON 253 261. 

which the hierarchy is in an incipient state and all soci- 
eties of ecclesiastics and seminaries founded exclusively 
for the foreign missions. 

As to religious, this Congregation is competent in what- 
ever touches them as missionaries, either individually or 
as a body. But whatever concerns religious as such must 
be referred to the Congregation of Religious. 



the s. congregation of rites 
Can. 253 



§ 1. Congregatio Sacrorum Rituum ius habet vi- 
dendi et statuendi ea omnia quae sacros ritus ct caere- 
monias Ecclesiae Latinae proxime spectant, non autem 
quae latius ad sacros ritus referuntur, cuiusmodi sunt 
praecedentiae iura aliaque id genus, de quibus sive ser- 
vato ordine iudiciario sive in linea disciplinari disce- 
ptetux. 

§ 2. Eius proinde est praesertim advigilare, ut sa- 
cri ritus ac caeremoniac diligenter serventur in Sacro 
celebrando, in Sacramentis administrandis, in divinis 
officiis persolvendis, in iis denique omnibus quae Ec- 
clesiae Latinae cultum respiciunt ; dispensationes con- 
cedere opportunas; insignia et honoris privilegia tarn 
personalia et ad tempus, quam localia et perpetua, quae 
ad sacros ritus vel caeremonias pertineant, elargiri, et 
cavere ne in haec abusus irrepant. 

§ 3. Denique ea omnia agit quae ad beatificationem 
et canonizationem Servorum Dei vel ad sacras reli- 
quias quoquo modo referuntur. 



The business of this important Congregation is, there- 
fore, to watch over the proper observance of the sacred 
rites and ceremonies in the celebration of the Mass, the 



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a62 ECCLESIASTICAL PERSONS 

administration of the Sacraments, the Divine Office, and 
everything pertaining to the worship of the Latin Church. 
It grants dispensations, distributes insignia and honorary 
privileges, either personal and temporary, or local and 
perpetual, which are connected with rites and ceremonies, 
and safeguards against abuses. 

This Congregation has the right to decide what belongs 
to the rites and ceremonies of the Latin Church, especially 
to approve the official liturgical books, such as the Ritual 
and the Pontificale Romanum, the Missal, the approbation 
of feasts, etc. 

It also supervises the beatification and canonization of 
the Servants of God and the cult of sacred relics. 



the s. congregate caeremoniaus 

Can. 254 

Ad Congregationem Caeremonialem pertinet mode- 
ratio caeremoniarum in Sacello Aulaque Pontifical! 
servandarum et sacrarum functionum quas Patres Car- 
dinales extra pontificale sacellum peragunt; itemque 
eadem Congregatio cognoscit quaestiones de praece- 
dentia turn Patrum Cardinalium turn Legatorum quos 
variac Nationes ad Sanctam Sedem mittunt. 



This Congregation is entrusted with the direction of 
the ceremonies to be observed in the papal chapel and 
court, of the sacred functions which the Cardinals per- 
form outside the papal chapel, and the decision of ques- 
tions concerning the precedence of Cardinals and ambas- 
sadors accredited to the Holy See. 



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IHE S. C. FOR EXTRAORDINARY ECCLESIASTICAL AFFAIRS 

•a 

Cam. 255 

Ad Congregationem pro ncgotiis ccclesiasticis ex- 
traordinarhs spectat dioeceses constitucrc vel dividcrc 
ct ad vacantes dioeceses idoneos viros promovere, quo- 
ties hisce de rebus cum civilibus Guberniis agendum 
est ; insuper Congregatio in ea negotia incumbit, quae 
eius examini subiiciuntur a Summo Pontifice per Car- 
dinalem Secretarium Status, praesertim ex illis quae 
cum legibus civilibus coniunctum aliquid habent et ad 
pacta conventa cum variis Nationibus referuntur. 



This Congregation is entrusted with the erection and 
division of dioceses and the promotion of ecclesiastics to 
vacant dioceses, whenever these matters must be settled 
in accord with civil governments ; besides, it has charge 
of affairs submitted to it for examination by the Supreme 
Pontiff through the Cardinal Secretary, especially where 
civil governments or concordats are concerned. 



THE S. CONGREGATION OF STUDIES 

— 
s 

Can. 256 

§ 1. Congregatio de Seminariis et Universitatibus 
studiorum vigilat super omnibus quae ad regimen, di- 
sciplinam, temporalem administrationem et studia Se- 
minariorum pertinent, incolumi iure Congregationis 
de Prop. Fide. Eidem pariter commissa est moderatio 
regiminis ac studiorum, in quibus versari debent 
athenaea seu quas vocant Universitates vel Facultates 
quae ab Ecclesiae auctoritate dependent, comprehensis 
iis quae a religiosae alicuius familiae sodalibus diri- 
guntur. Novas institutiones perpend it approbatque; 



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264 ECCLESIASTICAL PERSONS 

if 

facultatem conccdit academicos gradus confcrcndi nor- 
masque tradit quibus ii conferri debeant, et, ubi agitur 
de viro singulari doctrina commendato, potest cos ipsa 
conferre. 

§ a. In hac Sacra Congregatione connumerantur 
inter alios Cardinales Secretarius Congregationis Con- 
sistorialis et inter Consultores Assessor eiusdem Con- 
gregationis. 

This Congregation watches over the government, dis- 
cipline, and temporal administration of seminaries, except 
those under the Propaganda. It supervises the order and 
courses of studies at Catholic universities dependent on 
the authority of the Holy See, even those entrusted to 
religious communities, examines and approves new insti- 
tutions, grants the faculty of and determines the rules 
for conferring academic degrees in the name of the Holy 
See, and may itself grant such degrees to men dis- 
tinguished for their learning and devotion to the Church. 



N 

■ 



the s. congregation for the oriental church 

Can. 257 

§ 1. Congregationi pro Ecclesia Orientali praeest 
ipse Romanus Pontifcx. Huic Congregationi reservan- 
tur omnia cuiusque generis negotia quae sive ad per- 
sonas, sive ad disciplinary sive ad ritus Ecclesiarum 
orientalium referuntur, etiamsi sint mixta, quae sci- 
licet sive rei sive personarum ratione latinos quoque 
attingant. 

§ 2. Quare pro Ecclesiis ritus orientalis haec Con- 
gregatio omnibus facultatibus potitur, quas aliae Con- 
gregationes pro Ecclesiis ritus latini obtinent, incolumi 



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CANON 258 265 

tamen iure Congregationis S. Officii ad normam 
can. 247. 

§ 3. Haec Congregatio controversias dirimit via di- 
sciplinari ; quas vero ordine iudiciario dirimendas iudi- 
cavcrit, ad tribunal remittet quod ipsa Congregatio 
dcsignavcrit. 

To this Congregation appertain all affairs which touch 
either persons or the discipline and rites of the Oriental 
Churches, even such as are of a " mixed " nature, vis, 
in part concern Latins. However it can settle matters 
administratively only ; all judiciary questions must be re- 
ferred to tribunals designated by the same Congregation. 

The Congregation for the Oriental Church appears to 
be a new creation, for it formerly formed part of the S. C. 
of the Propaganda, to which latter was also attached, as a 
special department since the time of Pius VII, the so- 
called Reverenda Camera Spoliorum. Pius VII had 
made a large loan of the Propaganda and, in partial pay- 
ment thereof, assigned to that Congregation the revenues 
from vacant benefices which would otherwise be claimed 
by the Apostolic Exchequer. 15 The Code makes no men- 
tion of this, probably because it is of a private nature. 

ART. II 

TRIBUNALS OF THE ROMAN COURT 
The Sacra Poenitentiarta 

Can. 258 

§ r. Sacrae Poenitentiariae praeficitur Cardinalis 
Poenitentiarius Maior. Huius tribunalis iurisdictio 

18 " Spolii jura,*' June 19, 181;; Hilling, /. c, p. 81. 



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266 ECCLESIASTICAL PERSONS 

coarctatur ad ea quae forum internum, etiam non sa- 
cramentale, respiciunt; quare hoc tribunal pro solo 
foro interno gratias largitur, absolutiones, dispensa- 
tiones, commutationes, sanationes, condonationes ; ex- 
cutit praeterea quaestiones conscientiae easque dirimit. 
§ a. Eiusdem insuper est de iis omnibus iudicare 
quae spectant ad usum et concessionem indulgentia- 
rum, salvo iure S. Officii videndi ea quae doctrinam 
dogmaticam circa easdem indulgentias vel circa novas 
orationes et devotiones respiciunt 



In the eleventh and twelfth centuries so-called Apostolic 
confessors were chosen from the papal court, and in the 
thirteenth century a Cardinal held a prominent place 
among these poenitentiarii, who had the power to absolve 
from papal censures and to impart certain dispensations. 
As a corporation or college, or as a regular tribunal, these 
poenitentiarii were established by Benedict XII, in 1338." 
After repeated reorganizations, Benedict XIV gave to this 
body the form which it has substantially retained to the 
present time. 11 It is now composed of the Cardinal 
Penitentiary, the Regens, a theologian, five prelates of the 
Signatura, a secretary and several minor officials. 

Its jurisdiction is limited to the court of conscience, 
confessional and extra-confessional, and hence this tribu- 
nal grants absolutions, dispensations, commutations, sana- 
tions, condonations, and solves cases of conscience. It is 
also empowered to judge concerning the use of indulgen- 
ces, with the exception of dogmatic questions regarding 
the same and of new prayers and devotions, which de- 
partments belong to the domain of the Holy Office. 



It " In agro Dominico," April 8, If Benedict IV, " Pastor bonus " 

1338: cf. the classical treatise of and "In apostolica." Ap. 13. 17441 

Goellcr, Dit PSpttliche Ponittn- Hilling, I. c, p. 127 f.; Annuorio 

tiorit, 1907, Vol. I. Pontifieio, 1917, p. 369. 



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The Rota and the Signatura 

The assessors of the Rota are called auditorcs. The 
term occurs in the Decretals as well as "Auditorium." x% 
The auditors constituted a college in the first decades 
of the 14th century, for the constitution "Ratio iuris," 
of John XXII (1326) supposes a corporate body 
of the "sacri palatii causarum generates auditores." 19 
Perhaps this was at first a worldly tribunal for the papal 
dominions, but in course of time it was transformed into 
an ecclesiastical corporation. As " Rota " it is mentioned 
in a constitution of Martin V.*° The name has found 
various explanations. Some hold that it arose from the 
custom of the auditors of holding their meetings at a 
round table or, at Avignon, in a room with a fretted 
ceiling (" rota porphyretica lacunar ") ; but it seems 
more probable that the name owes its origin to the custom 
of filing the official records in the form of rolls in a 
barrel-shaped bookshelf (in pluteo or rotulo). 21 How- 
ever this may be, the Rota since the 14th century has 
been often reformed as to the number of auditors and 
mode of procedure. It maintained its reputation, al- 
though somewhat diminished after the institution of the 
congregations, up to the year 1870, when it seemed that 
the " charioteer and master of all tribunals n was doomed 
to a slow death. But Pius X revived and restored the 
Rota. 

a 

Its constitution is officially established in the " Sapienti 
consilio " and the " lex propria." The Rota consists of 
ten prelates appointed by the Roman Pontiff. The primus 

18 Philipps, K.-R-, VII, 307 f. Rom. Pont., I, P. II, p. 696; Goel- 

xo Bull. Taurin., It. IV, 317 ff. ler. In Arckiv. fBr Kath. K.R., 

20 lb., p. 708 i. I 17. iQii- 

21 Ehrle, Historia Bibliothtcae 



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268 ECCLESIASTICAL PERSONS 

inter pares is called dean. The auditors are allowed to 
choose an assistant (coadjutor), to be approved by the 
pope, who appoints a promoter justitiae and a defensor 
vinculi. Besides these there are a number of approved 
lawyers, from whom the litigants must choose one, and 
minor officials. The Rota is competent to try all cases 
which arc not causae tnaiores, including criminal cases 
committed to it by the Pope, either motu propria or at the 
request of the parties concerned. The Rota may also 
decide in the second and third instance, and in the last 
instance in cases tried by an inferior tribunal. The 
auditors give their decisions in turns of three, or in more 
important cases or last instances, in pleno. Their sen- 
tences may be overthrown for formal reasons, otherwise 
they are final. 

Formerly there were two scgnature, one called gratiae, 
the other iustitiae. In the course of time one was deemed 
sufficient, and hence it was but natural that at the re- 
organization of 1908 the two were welded into one. 
Benedict XV has further determined the authority of this 
tribunal, 22 which has entered the new Code in a modified 
form. 

Can. 259 

Causae ordinem iudiciarium requirentes aguntur 
apud Sacram Romanam Rotam et apud Supremum 
Tribunal Signaturae Apostolicae intra fines et secun- 
dum normas traditas in can. 1598-1605, salvo iure Con- 
gregations S. Officii et Congregationis Sacrorum Ri- 
tuum in causas sibi proprias. 



Causes requiring judiciary procedure are to be treated 

**A. Ap. S., 1915, p. 320 ff; Annuario Pontificio, 1917, p. 370 f. 



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CANON 260 269 

by the S. Roman Rota and the Supreme tribunal of the 
Apostolic Signatura, according to the norms laid down 
in can. 1598-1605, except matters pertaining to the Holy 
Office and the S. Congr. of Rites. 



ART. Ill 

T 

THE OFFICES OF THE ROMAN COUET 

c 

The Apostolic Chancery 

The Apostolic Chancery grew out of the scriniutn men- 
tioned under Damasus I (366-384). In the eleventh cen- 
tury the Librarian of the Holy Roman Church appears 
also as Chancellor of the same, but was called vice-chan- 
cellor, because it seemed unfit that a cardinal should hold 
that office. 93 Now the cardinal presiding over the chan- 
cery is styled Cardinal-Chancellor, and is assisted by a 
regens, his substitute, and several prothonotaries Apostolic 
and minor officials (mostly laymen). 24 



Can. 260 

§ 1. Cancel lariae Apostolicae, cui praeest Cardina- 
lis Cancellarius Sanctae Romanae Ecclesiae, hoc est 
proprium munus, apostolicas expedire litteras seu 
bullas pro benenciorum et officiorurn consistorialium 
provisions novarum provinciafum et dioecesium ac 
capitulorum institutione et pro aliis maioribus Eccle- 
siae negotiis conficiendis. 

§ a. Quae litterae seu bullae ne expediantur nisi de 
mandate Congregation's Consistorialis circa negotia 
ad eius competentiam spectantia, aut de mandate 

a Bresslau, Urkuttdenlehre, 1889, Cistercian Order were the plumb*- 
I, 173 ff. tores at the Apostolic Chancery. 

s« Formerly lay brothers of the 



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Summi Pontificis circa alia negotia, servatis in singu- 
lis casibus ipsius mandati tcrminis. 



The Apostolic Chancery expedites pontifical documents 
or bulls for the provision of consistorial benefices and 
offices, for the erection of new provinces, dioceses, and 
chapters, and for other ecclesiastical affairs of importance. 

These documents or bulls cannot be dispatched without 
the command of the S. C. Consistorialis in matters per- 
taining to the latter's competency, or without a mandate 
of the Supreme Pontiff concerning other matters; in any 
case the limits of the mandate must be strictly observed. 



The Apostolic Datary 

No later than the 13th century there was attached to 
the Apostolic Chancery a place or locality where petitions 
to the Pope were received. This was called "communis 
data** and later on, " tribunal gratiae concessae.'* 2i It 
developed in course of time into a regular tribunal of dis- 
pensations, especially for matrimonial cases, and since 
Innocent X (1644-1655) was presided over by a cardinal 
pro-datary. At present it has lost much of its signifi- 
cance. The personnel consists of the cardinal datary, a 
subdatary, and a prefect. 

Can. 261 

Datariae Apostolicae, quam moderatur Cardinalis 
Datarius Sanctae Romanae Ecclesiae, commissum est 
cognoscere de idoneitate promovendorum ad beneficia 
non consistorialia Apostolicae Sedi reservata ; conficere 
et expedire apostolicas litteras pro eorum collatione; 
eximere in conferendo beneficio a conditionibus requi- 

3ft Bresslau, /. c, p. 331. 



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CANON 262 WJX 

sitis, quotics eius collatio ad Ordinarium non pertinct ; 
curare pensiones et onera quae Summus Pontifex in 
memoratis conferendis beneficiis imposuerit 



- 

The Apostolic Datary, at the head of which is a Cardi- 
nal of the Holy Roman Church, investigates the fitness 
of candidates proposed for benefices that are reserved to 
the Apostolic See but not conferred in consistory. It also 
composes and dispatches the Apostolic letters for their 
appointment, grants exemption from qualities required in 
the appointees to benefices which do not belong to the 
Ordinary, and takes care of the pensions and taxes im- 
posed by the Supreme Pontiff in conferring such benefices. 



The Reverenda Camera Apostolica 



After the office of Archdeacon of the Holy Roman 
Church had, especially through the efforts of Gregory 
VII (1073-1085), lost much of its former exorbitant 
power, the Camerlengo took his place and soon acquired 
the rank of a cardinal. The Camera was a place in the 
papal palace where the treasury and the sacred vessels and 
vestments (il tesoro) were kept. 2 " Under Leo X the 
Camerlengo became the exchequer of the Papal State as 
well as of the Church, whilst the vice-came rlengo was 
governor and the auditor judge-in-ordinary of the City." 

Now the R. C. A. has a Cardinal Camerlengo (not the 
same as the Camerlengo del Sacro Collegio), a Vice- 

o 

Camerlengo, an auditor general, and a treasurer. 



Can. 262 
Camerae Apostolicae, cui praesidet Sanctae Roma- 

J« Mabillon, Iter Italicum, 1724* » L« X, » EUi pro," June 28, 

II, 3«a, 450. 488. 1514- 



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272 ECCLESIASTICAL PERSONS 

nae Ecclesiae Cardinalis Camerarius, cura est atque 
administratio bonorum ac iurium temporalium San- 
ctae Sedis, quo tempore praesertim haec vacua habea- 
tur; et tunc adamussim serventur nonnae statutae in 
const. Pii X Vacante Sede Apostolica, 25 Dec. 1904. 

The Camera Apostolica administers the temporal prop- 
erty and rights of the Holy See, especially during a 
vacancy, when the rules laid down by Pius X in the 
"Vacante Sede Apostolica" (Dec. 25, 1904) must be 
strictly observed. 

Tht Secretariate of State 



It is evident that the office of Secretary of State is one 
of " confidence and authority, of great prominence in the 
Curia." 28 Apostolic secretaries or confidential chaplains 
were known as early as the 14th century. Of a " College 
of Apostolic secretaries " we hear in the constitution of 
Innocent VIII, who reformed it. B0 The same Pontiff also 
created the office of a " domestic or intimate secretary/' 
who often was a near relative of the Pope (nepos). 
After Julius II (1503-1513) had established permanent 
nuncios, the authority of the nepos, who received the 
cardinal's title and was therefore called Cardinal Nepos, 
increased so that he managed all the diplomatic affairs of 
the Papal Court. Many incumbents of this office also 
held the tide of Vice-Chancellor of the H. R. Church. 
However after the golden age of nepotism had passed, 
especially through the efforts of Innocent XI (1676- 
1689), the Cardinal Nepos disappeared before the Cardi- 

a 
c 

2fl Annuario Pontificio, 1917, p. Dec. 31, 1487 (.Bull., Taur., V, 
573- 330 ff). 

29 " Non debet repreheniible," 



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CANON 263 273 

nal Secretary, who thus became what he now is : Secretary 
of State or Prime Minister of the Pope. 

Can. 263 

Officium Secretariae Status, cuius moderator est 
Cardinalis Secretarius Status, constat triplici parte 

hoc or dine : 

i.° Prima pars, cui praesidet Secretarius Congre- 
gationis pro negotiis ecclesiasticis extraordinariis, ver- 
satur in negotiis quae eidem Congregationi exami- 
nanda subiici debent ad normam can. 255, ceteris pro 
diversa eorum natura ad peculiares Congregationes re- 
missis ; 

a.° Altera pars, cui praeest Substitutus, incumbit 
in ordinaria negotia ; 

3. Tertiam partem dirigit Cancel la ri us Breviutn 
Apostolicorum, qui vacat expedition! Brevium. 



The office of Secretary of State consists of three 
departments. (1) The first, presided over by the Secre- 
tary of the Congregation for Extraordinary Ecclesiastical 
Affairs, deals with matters which (can. 255) are sub- 
mitted to the authority of that congregation. (2) The 
second, headed by the Substitute, deals with matters of 
ordinary occurrence. (3) The third department, under 
the Chancellor of Apostolic Briefs, attends to the expedi- 
tion of papal Briefs. 

a 

Can. 264 

Ad Secretarias Brevium ad Principes et Epistola- 
rum latinarum spectat munus latine scribendi acta 
Summi Pontificis, ab eodem illis commissa. 

The Secretariate of Briefs directed to Princes and of 



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274 ECCLESIASTICAL PERSONS 

Latin Letters is charged with writing in Latin the docu- 
ments with which the Sovereign Pontiff entrusts it. 

Authority of tht Roman Court and Its Decisions 



The Sacred Congregations are the first and most con- 
spicuous bodies that share in the labors of the Supreme 
pontificate, 10 wherefore Pius X calls these, together with 
the Tribunals and Offices, the Roman Court, which has 
" to deal with the affairs of the universal church." " 
From this it is apparent that the congregations act as 
true judges in their own domain, in the name and with 
the authority of the Pope. And although it may be truly 
said that their jurisdiction is ordinary, yet it is entirely 
dependent on the Supreme Pontiff. Hence this Court de 
facto enjoys the same authority as the Pope himself, and 
its decisions demand obedience and assent from the 
bishops as well as from the faithful and the clergy. 82 

This is evident also from the fact that all decisions of 
more than ordinary importance or of extraordinary char- 
acter must be reported to the Pope. 83 

We now aproach the question of the juridical value of 
the decisions of the various Congregations and Tribunals. 

(1 ) Concerning favors, there is little difficulty, for they 
touch only persons directly concerned, and therefore are 
of a private nature. However, if a favor curtails the 
right of a third person, the latter must first be asked, 
either directly or through the Ordinary. 34 

(2) As to questions that may be settled by way of 



•OSbctu» V, " ImmcnM," June 41ft. 

mm, 1587. 83 Cfr. can. 244, fi 1. 

8i"Sapienti consilio " (A. Ap. 3* ,f Sapienti consilio," Ordo ser- 

S. t I, 8). vandus, III. 1 {A, Ap. S., I, 6a). 

•• Santi-Leitner, /. c, 1, 31, n. 



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GANON 264 375 

discipline or administration, i. e., without a judicial trial 
(absque strepitu iudicii), as, for instance, many liturgical 
questions or questions concerning parish priests and chap- 
lains of institutions or confraternities, — if this mode of 
settlement is accepted by the parties, then these parties 
have to abide by the decision of the respective Congrega- 
tion and are not allowed to pursue their rights by judicial 
action, unless the S. Congregation itself refers the case 
to a competent tribunal." From this it is evident that 
particular decisions touching single cases and persons bind 
those for whom they are issued, but not outsiders, and 
hence we sometimes find the clause " et non amplius" 
added, which means : " et amplius non proponatur" " i. e., 
the case is definitively settled. But even this clause does 
not make it impossible to have the case again proposed to 
the Roman Court if new reasons are found. In this case 
the remedy, which is not unlike the "restitutio in inte- 
grum/' must be resorted to. This is granted by the 
Pontiff. 

Concerning the sentences of the Rota, the benefit of 
restitution to the former judicial status is granted by the 
Signatura Apostolica. 17 

(3) The judicial sentences of the Roman tribunals, 
though not irretrievable, must be obeyed by the parties 
concerned, as long as no "restitutio in integrum" is 
granted. The latter suspends the effect of the sentence 
if its execution has not yet begun." 

Besides particular decisions and sentences there may be 

IB Can. 1905-1907. That the icn- 
tenccs of the S. R. Rota are final, 
the Boni Castellaine-Gould case 
pruvca. 



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■6 lb., p. 6$. 


-- 


so Santi-Leitner, /. c, I, 31, n. 




44. 


B 


87 ■ Sapienti conailio " (A. Ap. 


V 


S„ I, 18); can. 1603. 


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276 ECCLESIASTICAL PERSONS 

general decisions, which as a rule emanate from the Con- 
gregations, because the Tribunals are more or less occu- 
pied with particular sentences. When issued as " Decreta 
Urbis et Orbis " these general decrees bind the universal 
Church, provided no particular custom stands in the way. 
But, though they must be received with due respect, they 
are not irretrievable, much less infallible, unless the 
Roman Pontiff should publish such a decree by means of 
a solemn Constitution. 88 Instances to prove that even the 
decrees of the Holy Office are not irreformable or in- 
fallible, may be found in the Gallilei case (Feb. 15, 1616), 
and the decision of 1897 concerning the Comma Ioan- 
neum. 40 

As to future general decisions of the Roman Congre- 
gations note that any one which is not based on a strictly 
comprehensive interpretation of the New Code, but is 
either extensive or restrictive, is tantamount to a new law 
and lacks retroactive force. 41 Benedict XV has ordered 
that the Roman Congregations should for the present ab- 
stain from issuing " new general decrees," but limit their 
decisions to instructions and strictly declaratory explana- 
tions. 48 

There are collections of Roman decrees called authentic, 
for instance, of the S. C. of Rites and the Propaganda 
(1907), which contain many decisions of a strictly par- 
ticular nature, whilst others bear the title " decretum 
Urbis et Orbis/' Do the particular decisions lose their 
nature by being inserted in such a collection? By no 



'.<-. 



■9 Santi-Leitner, 1 . 39, n. 70 f. Holy Ghost omitted to quote that 

40 " L'trum tuto negari ant sal- text, although occasions were not 

tern in dubiura revocari possit, esse wanting. Cfr. Pchle-Preusa, 'The 

authentlcum textum S. Ioannis in Divine Trinity, pp. 30 sqq. 

Kp. I, 5, 7? Negative."— Pope 41 Can. 17, 5 a. 

Leo XIII was approached on the *-' " Cum Juris canonici," Sept. 

subject, and in his Encyclical on the 15, 1917 {A. Ap. S., IX, 530). 



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CANON 264 277 

fit 

means. For " authenticity * in that case is entirely dif- 
ferent from that of the three authentic collections of the 
Decretals, and means neither more nor less than that the 
decisions contained in those collections are genuine, i. c, 
were really given by the Congregations to whom they are 
ascribed. An illustration of the truth of our contention 
is the fact that Cardinal Gasparri never refers to the 
"Decrcta Authentica" of the S. R. Congr., but merely 
quotes the date of the decisions. 



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CHAPTER V 

LEGATES OF THE ROMAN PONTIFF 



Dependent on the Curia, and on the Secretary of State 
in particular, are those representatives of the Sovereign 
Pontiff who go by the name of legates. The right of 
sending and receiving legates (ius legationis activum et 
passk'um) is inherent in the spiritual sovereignty of the 
Pope. 1 It is evident, however, that the actual relations 
between the Pope and secular governments will differ 
according to the connection existing in each case between 
Church and State (sacerdotiunt et imperium). In other 
words, where there is a complete separation between the 
spiritual and temporal power, papal legates will not exer- 
cise diplomatic functions in the proper sense, nor be ac- 
knowledged by the public authorities as representatives 
of the Sovereign Pontiff. Their mission in such coun- 
tries is limited to merely ecclesiastical matters and their 
position or rank is strictly ecclesiastical. 

After this preliminary observation a few remarks on 
the historical development of the institution of papal 
legates may not be out of place. We hear of a Vicar 
Apostolic of IHyricum in the fourth century, whose office 
was entrusted to the Archbishop of Thessalonica (Sa- 
loniki). Similar rights and attributes were later be- 



l Pius VI. RcBponsio ad Metro- nied the right of the Pope to send 

politanos Mig., Trev., Col., Sal- nuncios and to grant dispensation*, 

iiburg.. super Nuntiattiris Apo- in an endeavor to impoie Febro- 

stoHcit, Romae 1789. The to-called nian principles upon the Church. 
" Punctiutio of Ems," 1 786, de- 

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CANON 265 279 

stowed on certain prominent sees in Gaul (Aries, 545). 
Spain (Seville, 520), and Germany (Treves, 909, Salz- 
burg, 973). The incumbents of these sees were consid- 
ered to be ipso facto papal legates, or legati nati. Out of 
these in the eleventh century grew the so-called primates, 
who have now dwindled into insignificance. 2 

Another species of legates, of greater and more lasting 
importance, are the legati missi, Leo I (440-461) sent 
Julian of Cos to the Emperor Marcian to look after ec- 
clesiastical discipline and watch over the purity of faith, 
as well as to observe the proceedings at the imperial court. 
If anything should be doubtful, he (Leo) would be ready 
to issue further instructions. 3 This is presumably the 
office of those who were called papal responsales or apo- 
crisiarii. In the Orient their activity lasted until Caesaro- 
papism brought forth the unhappy schism of the ninth 
century. 

Legati missi were employed also in the West, not in- 
deed permanently, but for temporary or transient mis- 
sions, especially in the tenth and eleventh centuries, when 
the investiture fight was raging, and in the twelfth and 
thirteenth centuries in connection with the crusades. 
That the royal courts of England and France were not in 
favor of these papal legates is well known. 4 But Rome 
insisted upon its right, and when permanent nunciatures 
had been established upon the model of the Florentine 
court (Medici) by Julius II, the papal legates became 
regular diplomatic agents of the Pope, who in turn re- 
ceived the envoys of civil governments. 

2 That of Hungary (Strigonensis s Ep. 113: " Consulctiti . . . 

or Gran) hai preserved a few of non deerit relationibua tuii mca« 

the ancient prerogatives, but the responsionis instructio " (Migne, 

Code does not favor any exception. P. L., 54, 1025). 

can. 271, unless it can be eapeciaUy « Cfr. the following note, 
proved by particular law. 



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A third kind of legates are the legati a latere, via., 
(sent) from the side of the pontiff. They are of rather 
recent date, used merely for transient purposes, and gen- 
erally chosen from among the Cardinals. Thus Pius VII 
sent Cardinal Caprara to put into effect the Napoleonic 
concordat; thus legati a latere have appeared in recent 
years at the international Eucharistic Congresses. 



Can. 265 



■ 



Romano PontiBci his est, a civili potestate indepen- 
dens, in quamlibet mundi partem Legatos cum vel sine 

ecclcsiastica iurisdictione mittendi. 



Two centuries before John XXII complained of his 
rights being curtailed by Christian princes 6 Pascal II 
uttered the same complaint against the King of England, 
who refused to receive papal legates. 8 In the new Code 
the Pbpe claims the right to send legates anywhere he 
pleases. This right can indeed be denied only on the 
pretext that the Church is no legal, necessary society 
founded by God, that the Sovereign Pontiff is not the 
spiritual ruler of that society, and that his power is not 
supreme, immediate, and independent within its own 
sphere. But these claims, as has been set forth, cannot 
be sustained, and the right asserted in Can. 265 is essen- 
tial to any sovereign. 



bC. un. Extnv. Coimn-, I, x: 
" Super gentes ct regna Roman u» 
PoGtifcx a Domino constitutes, 
cum personaliiet singula a regiones 
circuire non pouit, nee eirca gre- 
Rem sibi creditum curam paatoralia 
•olidtudinii exercere, necette habet 
iuterduin ex deblto impoiiue ler- 



vitutia, auoa ad divcrsai mundi 
partes destinare legato*. " Cfr. 
Leo XIII, " Longinqua octant/' 
Jan, 6, 1895- 

8 Friedberg, Greneen Mivuchen 

Staat und Kirche, 1672, p. 729; 
477. 54a. 



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CANON 265 281 

The legislator is careful to specify that it is a strictly 
spiritual jurisdiction that is exercised by his legates, viz., 
such as in no way exceeds the limits of the power ex- 
ercised by the Pope himself. 

It follows that if papal legates would deal with political 
questions, or such of a mixed nature which concern both 
Church and State, the " independent right " would be- 
come dependent on the State, which in its sphere is also 
sovereign. This latter supposition is not verified, e.g., 
in the case of the Apostolic Delegate at Washington, 
whose mission is confined to purely spiritual matters. 

It is evident that the Pope will not send legates to 
entirely pagan countries, where no Catholic subjects live, 
although he can and often does send missionaries for the 
purpose of conversion. But no government under whose 
regime a goodly number of Catholics live, has the right 
to exclude papal legates who come on a purely ecclesias- 
tical mission. 



Can. 266 

a 
<j 

Dicitur Legatus a latere Cardinalis qui a Summo 
Pontifice tanquam alter ego cum hoc titulo mittitur, et 
tantum potest, quantum ei a Summo Pontifice deman- 
datum est 

en 

--1 

A legatus a latere, then, is a Cardinal sent by the Sov- 
ereign Pontiff, and he has precisely as much power as the 
Pontiff bestows on him, and no more. 

As we have said before, legates were not always wel- 
come in the countries to which they were sent. One rea- 
son for this was that they committed grievous mistakes 
and often exceeded their faculties. 7 In the light of his- 
tory Canon 266 almost sounds like a warning. 

7Cc. 3, 4, X I. 30. 



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The following canons remove some misgivings which 
may arise in the Ordinaries of dioceses. 



Can. 267 

§ z. Legati qui mittuntur cum titulo Nuntii aut 
Internuntii: 

i.° Fovent, secundum normas a Sancta Sede recep- 
tas, relationes inter Sedem Apostolicam et civilia Gu- 
bernia apud quae legatione stabili funguntur; 

2. In territorio sibi assignato advigilare debent in 
Ecclesiarum statum et Romanian Pontificem de eodem 
certiorem reddere; 

3. Praeter has duas ordinarias potest ates, alias 
plerumque facultates obtinent quae tamen sunt omnes 
delegatae. 

§ 2. Qui vero mittuntur cum titulo Delegati Aposto- 
lic! unam habent ordinariam potestatem de qua in § I, 
n. 2, praeter alias facultates delegatas ipsis a Sancta 
Sede commissas. 

The office of die legates sent as Nuncios or Internun- 
cios, therefore, is to foster friendly relations between the 
Apostolic See and the civil governments to which they 
are accredited; to observe the conditions of the churches 
of the territory assigned to them and inform the Roman 
Pontiff thereof. Besides these ordinary functions, they 
often receive other faculties, which, however, are all dele- 
gated. 

Those legates who are sent out as Apostolic Delegates 
enjoy the ordinary power mentioned under § i, n. 2, be- 
sides other delegated faculties entrusted to them by the 
Holy See. 



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Can. 268 

§ x. Legatorum munus cum omnibus facultatibus 
eisdem commissis non exspirat vacantc Sede Apo- 
stolica, nisi aliud in litteris pontificiis fuerit statutum. 

§2. Cessat autem, expleto mandate, revocatione 

eisdcm intimata, renuntiatione a Romano Pontifke ac- 
ceptata. 

This canon repeals the enactment, elsewhere made, 1 
that the office of Legates with all the faculties granted 
them does not expire by the vacancy of the Apostolic See, 
unless otherwise provided in the Apostolic letters; but, 
that, on the other hand, it ceases if the mandate or mis- 
sion is fulfilled, or by repeal duly intimated, or by resig- 
nation accepted by the Roman Pontiff. A due intimation 
means an official or authentic document. 

Can. 269 

§ 1. Lcgati Ordinariis locorum liberum suae iuris- 
dictionis cxcrcitium relinquant. 

§ 2. Licet forte characterc episcopali careant, prae- 
cedunt tamen omnibus Ordinariis qui non sint cardina- 
lity dignitate insigniti. 

§ 3. Si charactere episcopali sint aucti, possunt sine 
Ordinariorum licentia in omnibus eorum ecclesiis, ex- 
cepta cathedrali, populo benedicere et officia divina 
etiam in pontificalibus, adhibito quoque throno et ba- 
culo, peragere. 

Since legates must respect the jurisdiction of the Ordi- 
naries, any suspicion on the part of the latter would be 
unfounded. Leo XIII justly observed, following St. 

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284 ECCLESIASTICAL PERSONS 

Gregory: " Their rights are sacred to us, their honor is 
that of the whole Church, and the pastor's glory is the 
solid strength and vigor of his brethren." • 

The rules for precedence are laid down in can. 106, i°, 
and can. 239, § I, n. 21, concerning cardinals. The term 
" all the churches " includes the churches of exempt reli- 
ligious. 

Can. 270 

Episcopis qui, ratione sedis, titulo Legati Apostolici 
decorantur, nullum exinde competit speciale ius. 

Bishops who are Apostolic legates by reason of their 
see, enjoy no special rights on that account. 10 

* * * 

To complete this more or less diplomatic tract we will 
add a list of papal nuncios and internuncios and Apostolic 
delegates. For the present Pope has divided the whole 
ecclesiastical corps into these three classes. 11 

1. Apostolic Nuncios are at Vienna and Madrid. 

2. Apostolic Internuncios in Argentina, Bavaria, Bel- 
gium, Brazil, Chile, Colombia, Holland, Peru, Venezuela. 

3. Delegates Apostolic f under the S. C. Consistorialis, 
are in Canada and Newfoundland, Cuba, the Philippine 
Islands, and the United States of America (Mexico also 
should have one). Delegates subject to the S. C. Prop. 
Fide: Australia, Constantinople, East Indies, Egypt and 
Arabia, Greece, Kurdistan and Armenia Minor, Meso- 
potamia, Persia, Syria. 

9 " Longinqua oceani," Jan. 6, (Monorchia Sicula), but entirely 

1895. suppressed by Pius IX (" Suprema," 

10 A certain right, or at least Jan. 28, 1864; cfr. Giannone, 11 fri- 

honorary prerogative, of an Apo- bundle delta Monarehia di Sieilia, 

stolic legate is still claimed by the 189a). 

King of Hungary (cf. Potthast, a A. Ap. S., 1916. p. aij (De- 

Reg is t a, n. 10,637), «"»d was vin- cree of May 8, ^in- 
dicated by the King of Sicily, 



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CANON 270 285 

The countries now represented at the Papal Court are : 

1. By ambassadors: Austria-Hungary and Spain. 

2. By envoys extraordinary: Argentina, Bavaria, Bel- 
gium, Bolivia, Brazil, Chile, Colombia, Costa Rica, Eng- 
land (on special mission), Holland, Monaco, Peru, Prus- 
sia, Russia." 

The Congress of Vienna, 1814, fixed the precedence of 
nuncios which they still retain. They rank in the first 
class, even after the loss of the temporal power of the 
Pope." 

It is noteworthy that the U. S. maintained, at least for 
some years, diplomatic relations with Pius IX (1848 to 
1868)." 

12 Sinnuario Pontiftcio, 19x7, p. m Cfr. Catholic Fortnightly Re- 

579. 29a, 58a ff. vino, (St Louis), Vol. XXV, No. 

is Wettlake, International Late, 12; Historical Record/ and Studies 
1910, I. p. a86f. of the U. S. Catholic Hist Soc., 

New York, Vol. XI (1918). 



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CHAPTER VI 

PATRIARCHS, PRIMATES, METROPOLITANS 

After what has been said about organization and papal 
legates, it is superfluous to add anything concerning 
patriarchs. As to the metropolitans, a few notes will 
suffice. 

Metropolitans are bishops who rule over a province 
composed of several bishoprics. However, under the 
present legislation, the term " rule " must be taken in a 
very restricted sense. In ancient times the power of 
metropolitans was more extensive, especially in regard to 
the election and ordination of the provincial bishops, the 
convocation of synods, and trials of the higher and lower 
clergy. 1 This was but natural since the metropolis was 
considered the mother see and center of the whole ecclesi- 
astical organism. However, in course of time the author- 
ity of the metropolitans was diminished and went to the 
general centre, Rome. Metropolitans are also called arch- 
bishops, though these terms are not fully synonymous; 
for every metropolitan is an archbishop, but not every 
archbishop is a metropolitan {e.g., the Archbishop of 
Ferrara). The title may be merely an honorary distinc- 
tion. 8 Every metropolitan has one or more suffragans, 
thus called since the eighth century. 8 In the Frankish 

t Cfr. Nic, cc. 4ff.; c. i, Disl- ropoliUn occurs since the VIII cen- 

64; c, 3, Diit. 1a; dictum Gratiani tury, cf. Benedict XIV, Dt Syn. 

ad c. I, C. g, q. 3. piotc, II, 4, 3 fl. 

2 The title archbishop for met- I V. Scoerer, /. c, I, 53a. In 

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CANON 271 287 

Kingdom, and in Italy, especially at Ravenna, the tend- 
ency early manifested itself to diminish the number of 
metropolitan sees and augment the prerogatives of the 
remaining archbishops, in order that they might appear 
as primates. These primates were mostly the nominees 
of temporal rulers. The abuses of this system were so 
grievous that the papacy set to work to arrest the exten- 
sion of metropolitan powers, prevent the creation of pri- 
matial sees, and generally opposed the growth of tend- 
encies which threatened to lead to the establishment of 
national churches.* 

Can. 271 

Patriarchae aut Primatis titulus, praeter praerogati- 
vam honoris et ius praecedentiae ad normam can. 280, 
nullam secumfert specialem iurisdictioncm, nisi iure 
particular! de aliquibus aliud constet. 



The title Patriarch or Primate is purely a title of honor 
and aside from the right of precedence (can. 280) carries 
with it no special jurisdiction, except where particular 
laws exist to the contrary. 

Our historical remark concerning the tendencies of 
certain bishops of France is corroborated by the canon 
quoted by Cardinal Gasparri in his edition. Rudolf, 
Archbishop of Bourges, claimed patriarchal rights; but 
Pope Nicholas I told him that, except where the canons 
and legitimate custom permit, patriarchs and primates 
have no power over other bishops, unless the Apostolic 
See has honored a church by special privileges. 5 The 



case of the transfer of an arch- g., Msgr. Harry of Omaha). 
bishop to a bishop's, fee, he re- * Cfr. Joy-Maitland, St. Nicholas, 

tains his title and hence is ad- I, 1001, p. 33 f. 
dressed sj Archbishop- Bishop (r. B C. 8, C. 9, q. 3. 



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same answer Innocent III made to an archbishop of 
Tours. 8 To-day, if we mistake not, only the archbishop 
of Gran (Esztergom) in Hungary enjoys any noteworthy 
prerogatives. 

Can. 272 

Provinciae ccclcsiasticae praecst Metropolita seu 
Archicpiscopus ; quae dignitas coniuncta est cum sedc 
episcopali a Romano Pontificc determinata vel probata. 

Over an ecclesiastical province presides a Metropolitan 
or Archbishop, and the connection of that dignity with an 
episcopal sec must be determined or approved by the 
Roman Pontiff. 

As the erection of dioceses, so that of provinces, is a 
causa maior reserved to the Holy See (S. C. Consist). 7 

Can. 273 

Salvo praescripto can. 275-280, Metropolita in pro- 
pria dioecesi easdem obligationes eademque iura habet 
quae Episcopus in sua. 

Besides the obligations and rights mentioned in can. 
275-280, a Metropolitan is bound in his own diocese by 
the same duties as a bishop in his, and enjoys the same 
rights. 

Can. 274 

In dioecesibus vero suffraganeis Metropolita potest 
tantum: 

z.° A patron is ad beneficia praesentatos instituere, 

• C. 9, X, X, 31. T Cf . c. a, C. 9, q. 3; can. 215; 

can. 348, fa. 



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CANON 274 289 

■ 
si Suffraganeus intra tempus iurc statutum, iusto im- 
ped imento non detentus, id facere omiserit; 

2. Indulgentias centum dierum, sicuti in propria di- 
oecesi, concedere ; 

3. Deputare Vicanum Capitularem ad normam can. 
43a, §2; 

4. Vigilare ut fides ac disciplina ecclesiastica ac- 
curate serventur, ac dc abusibus Romanum Pontihcem 
certiorem facere; 

5. Canonicam visitationem peragere, causa prius ab 
Apostolica Sede probata, si earn Suffraganeus negle- 
xerit; tempore autem visitation is, potest praedicare, 
confessiones audire etiam absolvendo a casibus Epi- 
scopo reservatis, de vita et honestate clericorum in- 
quirere, clericos infamia notatos Ordinariis ipsorum, ut 
eos puniant, denuntiare, notoria crimina, manifestas et 
notorias offensas turn sibi turn suis forte illatas, iustis 
poenis, censuris non exclusis, punire; 

6.° In omnibus ccclesiis, etiam exempt is, Or dinar io 
loci praemonito. si ecclesia sit cathedralis, peragere 
pontificalia, uti Episcopus in proprio territorio, populo 
benedicere, ciuce ante se delata incedere, non autem 
alia exercere quae iurisdictionem import ent ; 

7. Appellationem recipere a sententiis definitivis 
aut interlocutoriis dennitivarum vim habentibus, pro- 
lans in Curiis suffraganeis, ad normam can. 1594, § 1 ; 

8.° Controversias de quibus in can. 1573, § 2, in 
prima instantia dirimere. 

As to No. 1 : The right of investing is granted to the 
metropolitan if the suffragan delays investiture beyond 
two months, for in that case the law fl permits the patron 

8 Piui V. "In confercndiB." 1 4; Officio it Pottitalg Ehscofi. P. I. 
Richter, Trid,, p. $76; Barbosa, Dg tit 4, n. 20; cfr. can. 455, 458. 



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ECCLESIASTICAL PERSONS 

to ask the metropolitan for investiture, supposing, of 
course, that the candidate is fit. It may be observed that 
the Code mentions only benefices of the iiispatronatus, 
which is of no importance for the metropolitans of our 
country. 

No. 3 will be explained in its proper place, under can. 

432- 

No. 5. As to the canonical visitation, the Council of 

Trent B ordained that a metropolitan could perform it in 
a diocese of any of his suffragans only after he had vis- 
ited his own diocese and with the approval of the pro- 
vincial council. The new law modifies the old in two 
ways: first, in that the visitation of his own diocese is 
not required previously to visiting a suffragan's diocese; 
secondly, the reason for visiting the suffragan's diocese 
must now be reported to, and ratified by, the Holy See. 
This latter enactment is the logical consequence of the 
provincial councils being approved by the Holy See. As 
soon as the visit is ratified by competent authority, and 
the metropolitan enters the diocese of his suffragan, his 
jurisdiction becomes as it were ordinary over the sub- 
jects of his suffragan, but not over the suffragan him- 
self. Hence, (a) he may preach the word of God even 
without asking the suffragan; (b) exercise acts of juris- 
diction in the confessional as well as outside. To this 
latter faculty must be referred the investigation of the 
life and conduct of the clergy, and the exercise of con- 
tentious jurisdiction. Coercive power may be exercised 
by the metropolitan against infamous clergymen 10 for 
notorious crimes ll which cannot be concealed, especially 
if the culprit has been tried by a civil or ecclesiastical 



Sew. 94, c. 3 de ref., cc I, 5, ajSQ, • »- 
6 9 , III, 20. nCf. can. 2197. Btrbow, Trac< 

10 Cf. can. 33 jo, 3328, 1343, 2314, tat us forii, Appellatiw, n. 166. 



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CANON 274 291 

court. Finally, the metropolitan may proceed against 
such as offer affronts or insults to his person or suite, or 
prevent the exercise of his jurisdiction during the time 
of canonical visitation. 1 ' 

Nos. 7 and 8 mention appeals, which may, but need not 
always, be made from the sentence of the episcopal 
court, 18 and settlements of such controversies as regard 
the personal property and rights of the bishop or his 
episcopal revenues, or diocesan property. 14 

From this enumeration of the rights of a metropolitan 
with regard to his suffragans we may conclude, first, that 
only in case of negligence directly stated in the law has 
the metropolitan a right to interfere in the diocese of a 
suffragan. Here the old IB and the new law agree. Sec- 
ondly, a metropolitan enjoys no jurisdiction over his suf- 
fragans as such, for in all the cases alleged in the 
present canon the person of the suffragan is nowhere 
mentioned, but there is question merely of administrative 
measures or appeals, or the extraordinary case (n. 5) of 
canonical visitation, and in this the metropolitan really 
acts in the name of the Pope. 

Except in the case of a canonical visit, every jurisdic- 
tional act is forbidden to the metropolitan in the dioceses 
of his suffragans. 16 Wherefore the statement of some 
older canonists 17 that the metropolitan may exercise 
jurisdiction over his suffragans, must now be modified, 
as the present law warrants no such privilege, unless 
when the Holy See permits a metropolitan to exercise it 
in connection with a canonical visitation. 

lSCc. i. 5. 6°. III. 20; c. 1, 6". 17 Reiffeostuel, I. 10, n. Ill Bar- 

V, 9. bosa, Dt Officio a Potestate Epis- 

laCan. 1594, f l; c. 11, X, I, 31; copi, P. I, tit. 4, who enumerates 

e. 1, 6°. I, 16; c. 7. 6°, V, ti. 38 prerogatives of the arcbbUhops; 

14 Can. 1592, I a. cfr. his Summa Dccis. Aposl., a. r. 

is C. 1, 6°, I, 8; c 1, 6\ I, 6. " Archie pise opus," 

in Ce. »*., C. o, q. 3. 



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THE PALLIUM 



The origin of the pallium is involved in obscurity. It 
seems to be an imitation of the u>i*o<j>6pu)v, a band of wool 
worn at Mass by Oriental bishops. This ornament was 
in vogue also in Gaul and Africa. As a special sign of 
distinction the pallium came into general use after the 
sixth century. In its modern form it is a circular band, 
about two inches wide, worn about the neck, breast and 
shoulders, and having two pendants, one hanging down 
in front, the other behind. It is set with six black 
crosses of silk, one each on the breast and back, one on 
each shoulder, and one on each pendant It is worn 
over the chasuble and signifies the plenitude of the pas- 
toral and episcopal power which an archbishop has re- 
ceived from the Pope. 18 The pallia are kept in a capula 
over the tomb of St Peter, and hence are said to be 
" taken from the body of St. Peter," after being blessed 
by the Pontiff on the eve of the feast of SS. Peter and 
Paul. 10 

Can. 275 

Metropolita obligatione tenetur, intra tres menses a 
consecratione vel, si iam consecratus fuerit, a pro- 
visione canonica in Consistorio, per se vel per procura- 

torem a Romano Pontifice pallium petendi, quod si- 
gnifkat potestatem archiepiscopalem. 



The metropolitan is obliged, either himself or by proxy, 
to ask the Pope for the pallium within three months from 
the date of his consecration, or, if he is already conse- 
crated, from the time of his canonical promotion in the 
consistory. 

HCfr. Duchesne, Christian Wor- 19 Benedict XIV, " Rtrum #c 

ihip, p. 380 iT; lira mi in the C*th. clesiasiicanm," Aug. ia, 1748. 
Encycl., Vol. XI, 437. 



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CANON 276 393 

Can. 276 

Quare ante pallii impositionem, excluso special! in- 
dulto apostolico, ipse illicite poneret actus sive iurisdic- 
tionis metropolitanae, sive ordinis episcopalis in qui- 
bus, ad normam legum liturgicarum, usus pallii requiri- 
tur. 

Acts of metropolitan jurisdiction or of the episcopal 
order which require the use of the pallium according to 
liturgical norms, are illicit if performed before the impo- 
sition of the pallium. 

Can. 277 

Metropolia uti potest pallio intra quamlibet eccle- 
siam etiam cxemptam suae provinciae in Missarum 

sollemnibus, diebus in Pontincali Romano designatis 
aliisque forte sibi concessis; nullatenus vero extra 
provinciam, etsi Ordinarii loci consensus acccdat. 

The Metropolitan may use the pallium in every church 
of his province on the days determined in the Pontificals 
Romanum or on others specially granted to him ; but he 
may not use it outside his province, even though the local 
Ordinary consent. 

» 

Can. 278 

Si Metropolita pallium amittat vel ad aliam sedem 
archiepiscopalem transferatur, novo indiget pallio. 

If a Metropolitan loses his pallium, or is transferred 
to a different archiepiscopal see, he must obtain another 
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Can. 279 

Pallium neque commodari potest nequc donari nee 
in morte alicui relinqui, sed omnia pallia quae Metro 
polita obtinuit, cum eodem sunt sepelienda. 



The pallium can neither be lent, nor given away, nor 
left to anyone after death, but all pallia received by a 
Metropolitan must be buried with him. Archbishops 
who are metropolitans, or who hold that title, must de- 
mand the pallium instanter, instantius, itistantissime. 
The reason for this urgent postulation lies in the signifi- 
cance of the pallium as indicative of the plenitude of the 
archiepiscopal jurisdiction. 20 

If an archbishop is personally present in Curia, he must 
present himself to the senior Cardinal Deacon, who im- 
poses the pallium in the name of the Pontiff. The same 
applies to the procurator who requests the pallium for 
an archbishop, and who is, moreover, obliged to take an 
oath before the same Cardinal Deacon that he will con- 
scientiously transmit the sacred ornament to the metro- 
politan. 21 

Since the pallium signifies the plenitude of the pastoral 
office, it must be obtained before the metropolitan can 
exercise his archiepiscopal functions. Hence he cannot 
licitly invest clergymen presented by patrons, but he may 
licitly and validly make appointments in his own arch- 
diocese; he cannot convoke a provincial council (can. 
284), nor licitly perform any act of jurisdiction men- 
tioned in can. 274. Besides, before the reception of the 
pallium, a metropolitan cannot consecrate altars, or 
churches, or bishops, or chrism, or ordain clergymen, 



IOC. r, Dist. 100; e 3, X, I, 8. rauli of the oath ji given in "R#- 
31 Benedict XIV, M Inter con- mm tceUsiastiearum," Aug. 13, 



■picuos," Aug. 29, 1744. The for* 1748; cfr. can. 239, S3. 



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CANON 280 295 

even though he may have been archbishop of another 
diocese." 

The pallaium may be worn by an archbishop in all the 
churches located within the limits of his province. 
Strictly speaking, its use is restricted to the celebration 
of the Mass, except de requiem.™ The festival occasions 
on which the use of the pallium is permitted are indicated 
in the Caeremoniale Episcoporum.** Since the pallium is 
something attached to the person, but with definite rela- 
tion to a church designated by the Roman Pontiff, it can- 
not be loaned to another, or taken to another see, but all 
the pallia of an archbishop, if he has obtained several, 
are to be buried with him." 

precedence 

Can. 280 

Patriarcha praecedit Primati, Primas Archicpiscopo, 
hie Episcopis, salvo praescripto can. 347. 

Patriarchs enjoy precedence over primates, primates 
over archbishops, and archbishops over bishops, except 
in the cases mentioned in can. 347. 

The Annuario Pontificio for 1917 enumerates the fol- 
lowing Patriarclis, called maiores: 

Constantinople: (Latin) residing in Rome; 

Alexandria: The Latin residing in Rome; the Coptic 
at Hermopolis; 

Antioch: The Latin in Rome; the Syrian at Beirut: 
the Maronite at Bikorehi on Mount Lebanon ; the Greek 
Melchite (Arabic) at Damascus; 

23 Pontifical* Rom., Da Pallio; 24 L. I, c. 16, n. 4. 

Caeremoniale Epiicop., I, c. 16, n. 26 C. a, X, I, 8; c. 4. X, I, $; 

6. Pont. Rom., D* Pallio; Caertmonial* 

28 Caertm. Ep., ib. Epixcop., I, 16, n. 6 f. 



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Jerusalem, the Latin, with residence there. 

Minor Patriarchs are those of : 

Babylon of the Chaldees, at Mossul, who is at the same 
time Administrator Apostolic of Acre; 

Armenian Cilicia, at Constantinople, Administrator 
Apostolic of Ispaham in Armenia; 

West Indies, Archbishop of Toledo in Spain (since 

I 1540) ; 

East Indies, at Goa, since 1886; 

Lisbon, since 1716, residence there (under normal cir- 
cumstances). 

Venice, transferred from Aquileja-Grado since 1541." 

2«Cfr. Am. Ecel. Rev., 1918 (Vol. 58), p. 113 ff- 



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CHAPTER VII 

T 

PLENARY AND PROVINCIAL COUNCILS 

c 
S 

When Christianity had spread and diocesan centres 
were erected, the bishops assembled for deliberation and 
especially for the uprooting of heresies. This custom 
soon became an important factor in the life of the Church. 
Synods or councils, as they were called already in Ter- 
tullian's l time, were quite frequent in the third and even 
more so in the fourth century, and were generally held in 
times of a crisis, but also for disciplinary purposes. 
Since the middle of the third century they were known by 
the name of provincial (exarchal) councils. In Africa, 
however, plenary or universal councils, presided over by 
the primate of Carthage, were celebrated in the fourth 
and fifth centuries. Roman or Papal synods went by 
the same name almost to the close of the Middle Ages. 1 
The Council of Trent 8 ordered provincial councils to be 
held every three years for the regulation of morals, the 
correction of excesses, and the settling of controversies. 
Notwithstanding this enactment, times were so unfavor- 
able that more than a century elapsed without a provincial 
council being held, with the exception of one at Tarra- 
gona in Spain, until Benedict XIII held one at Benevento 
in 1693. Since then they became more frequent.* 



1 Dt iiiuniu, c. 13. * Colltctio Lacentu, Acta tl Dt- 

2Cfr. Kircktnhxikon. a ed, s. v. crtta SS. Condi Rtcentiorum, 1870, 

" Concil." Vol. I, Prolegomena, p. 2. 

6 Ses*. 24, c. 2 dc ref . 

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In this country the first provincial council was held at 
Baltimore in 1829 and followed by others in 1833, 1837, 
1846, 1849. In '852 the first National or Plenary Coun- 
cil was convoked by the Archbishop of Baltimore, Mt. 
Rev. F. P. Kendrick, in the capacity of Apostolic Dele- 
gate of Pius IX. The second followed fourteen years 
later, and the last one was held in 1884, under the presi- 
dency of Archbishop, now Cardinal, Gibbons of Balti- 
more as Apostolic Delegate." 

PLENARY COUNCILS 

•a 

Can. 281 



■ 



Ordinarii plurium provinciarum ecclesiasticarum in 
Concilium plenarium convenire possunt, petita tamen 
venia a Romano Pontifice, qui suum Legatum designat 
ad Concilium convocandum eique praesidendum. 



The Ordinaries of several ecclesiastical provinces may 
meet in a plenary council after having obtained permis- 
sion from the Roman Pontiff, who will designate a Legate 
to convoke and preside over the council. 

Leo XIII, after having received the petition of South 
American bishops, left it to them to choose the place of 
meeting, but was highly pleased with their choice of 
Rome, where the illustrious prelates met in 1899 and 
enacted a number of decrees which received the specific 
approval of the Holy See. 8 

Can. 282 

■ 

§ 1. Concilio plenarxo assistere debent cum suffragio 

- 

D The acta were published in the • " Quum diuturnum," Dec *s, 

Coll. Lacencis, t. Ill, and separately 1898 (<*». Eccl. Rev., Vol. jo, 
st Baltimore in 1853. 1868, 1886. 409 f.). 



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deliberative praeter Legatum Apostolicum, Metro- 
politae, Episcopi residentiales, qui, sui loco, mittere 
possunt Coadiutorem vel Auxiliarem, Apostolici dioe- 
cesium Administrators, Abbates vel Praelati nullius, 
Vicarii Apostolici, Praefecti Apostolici, Vicarii Capitu- 
lares. 

§ a. Etiam Episcopi titulares, in territorio degentes, 
si a Legato Pontificio, secundum receptas instructiones, 
ad Concilium vocentur, adesse debent habentque suf- 
fragium deliberativum, nisi in convocatione aliud ex- 
presse caveatur. 

§ 3. Alii ex utroque clero viri, forte ad Concilium in- 
vitati, suffragio non gaudent nisi consultivo. 



D 



This canon, especially by § 3, excludes the superiors of 
religious orders or congregations from a deliberative or 
decisive vote; they need not even be invited if the pre- 
liminary meeting thinks it unnecessary to call them. 
This enactment is surprising ii compared with can. 223, 
§ 1, n. 4, which admits the superiors general of exempt 
religious and abbots presidents of monastic congregations 
to deliberative participation at a general council. The 
Third Plenary Council of Baltimore had accorded that 
same right to the abbots presidents Wimrner of St. Vin- 
cent and Mundwiler of St. Meinrad, and to the superior 
general of Holy Cross, Father Sorin. T We are at a loss 
to find a solid reason for the exclusion of the aforesaid 
superiors from the right of assisting at a plenary council, 
the more so since Cardinal Gasparri gives no text for this 
enactment. But where there is no right, there is no obli- 
gation, although an invitation might be tendered. 

1 Acta it Decrsta Cone. Bait. III., 1886, p. LXIII. 



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provincial councils 

Can. 283 

In singulis provinces ecclesiasticis celebretur pro- 
vinciale Concilium vicesimo saltern quoquc anna 

In each province a provincial council should be held at 
least once every twenty years. 

Can. 284 

Metropolita, eoque legitime impedito vel sede archi- 
cpiscopali vacantc, Suffraganeus antiquior promotione 
ad ecclesiam suttraganeam ; 

i.° Locum ad celebrandum Concilium intra provin- 
ciae territorium, auditis omnibus qui assistere debent 
cum suffragio deliberative, digit; cessantibus tamen 
iustis impediments, metropolitana ecclesia ne negliga- 
tur; 

2. Concilium convocat eique praeest. 

The metropolitan, or in case he is lawfully prevented 
or the archiepiscopal see is vacant, the suffragan who by 
reason of promotion to the suffragan see is the senior, 
shall select the place for holding the council, after having 
received the opinion of all those who are obliged to assist 
thereat with a decisive vote. If there is no serious ob- 
stacle, the metropolitan church should be chosen. The 
metropolitan shall convoke the council and preside over it 

The term " auditis " signifies that the metropolitan is 
not bound by the opinion or quasi-vote given, but may 
choose a place according to his own good pleasure. 8 

Can. 285 
Episcopi qui nulli Metropolitae subiiciuntur, Ab- 

iCt can. ios. 



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CANON 286 301 

bates vel Praelati nullius, et Archicpiscopi Suffraganeis 
carcntes, aliqucm viciniorcm Metropolitan!, nisi forte 
iem clegerint, semel pro semper*, praevia Sedis Apo- 
stolicae approbation^ eligant, onius Concilio provin- 
cial! cum aliia intersint, ct quae ibi ordinata fucrint, 
observent et obscrvanda curcnt. 



Bishops who are not subject to a metropolitan, abbots or 
prelates nullins, and archbishops without suffragans, if 
they have not done so already, should once for all and 
with the approbation of the Holy See choose the nearest 
metropolitan, at whose provincial council they must assist, 
and the enactments of which they must observe and 
enforce. 

a 

As to the vicinior, or nearest metropolitan, several deci- 
sions • of the Roman Court have denned that the distance 
is to be measured from the cathedral or abbey church to 
the cathedral of the metropolitan. However, these deci- 
sions are rather old, and perhaps antiquated, because there 
were no railroad facilities in those days, and hence it will 
be advisable to submit the choice to the Holy See. After 
the choice has been approved, no change is permitted and 
the obligation of assisting at the provincial councils is 
strict if no legitimate impediment occurs. 



Can. 286 

§ 1. Practer Episcopos, Abbatea vel Praelatos nuU 
lias et Archiepiscopos de quibus in can. 285, ad Con- 
cilium provinciate vocandi sunt et convenire debent 
cum voto deliberativo Suftraganei omnes aliique de 
quibus in can. 282, § 1. 

• S. C. EE. «t RR-, Jan. ao, 1579: coput vicinior;" Santi-Leitner. I, 11, 
1 C. C Aug. a, 1596; cf. Barbosa, n. 36; Trid. f Sea. 34, c. 2 de ref. 



Summa Deris. Apcst., $. v. " Epis- 



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302 ECCLESIASTICAL PERSONS 

§ 2. Episcopi titulares qui in provincia degunt, pos- 
sunt a praeside, cum consensu maioris partis illorum 
qui cum voto deliberative* intersunt, convocari, et si 
convocentur, votum habent deliberativum, nisi aliud in 
convocatione caveatur. 

§ 3. Capitula cathedralia aut Consultores dioecesani 
cuiusvis dioecesis cuius Ordinarius ad normam § t 
vocari debet, invitentur ad Concilium et invitati mit- 
tant duos ex capitularibus aut Consultoribus collegiali- 
ter designates, qui tamen obtinent votum tantum con- 
sultivum. 

§ 4. Maicres quoque religionum clericalium exempta- 
rum ac Congregationum monasticarum Superiores, qui 
in provincia resideant, invitandi sunt, debentque in- 
vitati adesse aut impedimentum, quo detinentur, Con 
cilio notum facere; sed his, quemadmodum aliis ex 
utroquc clcro viris ad Concilium forte vocatis, votum 
fuerit, habet votum dumtaxat consultivum. 



Two diocesan consultors, therefore, must attend the 
provincial council and the superiores maiores of exempt 
clerical orders and monastic congregations who reside in 
the province must also be invited, and upon being invited, 
must attend or give notice of the reason for their absence ; 
but all these and other ecclesiastics, secular and regular, 
if invited, have only an advisory vote. 

Innocent III told the archbishop of Sens, who wished 
to exclude the cathedral chapters from the provincial 
council, that their deputies were to be admitted to the 
conciliar discussions (ad tractatum), especially with re- 
gard to matters touching upon the chapters. 10 This text 
would seem to indicate that these delegates ought to have 
a deliberative vote. But the new Code grants only a 

10 c. io, x, ni f io. 



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consultive vote, apparently for the reason that only the 
bishops are judges and legislators in the true sense, — 
which reason is perfectly correct, inasfar as even these 
judges cannot go against the general law. 

The deputies of the chapters and diocesan consultors 
must be appointed colicgialiter, either by secret ballot or 
open vote by a legitimate quorum present in one place at 
the same time. 

At provincial councils the superiors of religious orders 
are allowed to be present, nay, they must be invited, and 
this invitation, of course, creates the obligation of at- 
tending. 



conciliary proceedings 
Can. 287 

■ 

§ 1. Qui Concilio plenario aut provinciali interesse 
debent cum voto deliberative si iusto impedimento de- 
tineantur, mittant procuratorem et impedimentum 
probent. 

§ 2. Procurator, si fucrit unus ex Patribus quibus est 
votum deliberativum, duplici voto non gaudet ; si non 
fuerit, habet votum dumtaxat consultivum. 

Those obliged to attend either a plenary or provincial 
council and who have a deliberative vote, shall, if detained, 
send a procurator and prove that they are legitimately 
absent. If the procurator is one of the "Fathers" of 
the Council, he enjoys but one vote; if he is not a 
" Father," he has a consultive vote only. 



Can. 288 
In Concilio sive plenario sive provinciali praeses, 



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habito, si de provincial agatur, Patrum consensu, de- 
tcrminat ordincm scrvandum in quaestionibus exami- 
nandis ct ipsum Concilium aperit, transfer*, prorogat, 
absolvit. 

The president of either a plenary or provincial council 
(if the latter, with the consent of the Fathers) shall es- 
tablish the order in which questions are to be examined, 
shall open, transfer, prorogue, and close the meetings. 

Can. 289 

Concilio plenario vel provincial! inchoato, nemini 
eorum qui interesse debent, licet discedere, nisi iustam 
ob causam a Legato Pontificio vcl a Concilii piovin- 
cialis Patribus probatam. 

Those who are obliged to attend a plenary or provincial 
council are not allowed to depart, once the council has 
been opened, unless they have a reason approved by the 
Apostolic Legate or the Fathers of the Council. 

Notice the difference between those who are obliged to 
attend, because these may enjoy only an advisory vote, 
and the Fathers of the council, who are entitled to a de- 
liberative or decisive vote. 



2 

Can. 290 



Patres in Concilio plenario vel provinciali congregati 
studiose inquirant ac decernant quae ad fidei incremen- 
tum, ad moderandos mores, ad corrigendos abusus, ad 
controversias componendas, ad imam eandemque dis- 
ciplinam servandam vel inducendam, opportune fore 
pro suo cuiusque territorio videantur. 

The Fathers of a plenary or provincial council shall 



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earnestly examine and decree upon all matters touching 
the increase of faith, the control of morals, the correction 
of abuses, the settling of controversies, the preservation 
and introduction of uniform discipline, and whatever may 
be opportune for their own territory. This canon states, 
in rough outline, what is to be submitted to the delibera- 
tion and consultation of the Fathers, and is chiefly taken 
from the IVth Lateran Council and that of Trent." Note 
that only " increase of faith " is mentioned, not a defini- 
tion of faith, because infallibility is not the attribute of a 
plenary or provincial council, which may, however, de- 
nounce heresies, draw attention to wrong tendencies, and 
warn the faithful against them. But the final definition 
or qualification must be left to the supreme tribunal. 
By the phrase u settling controversies " is not meant a 
dogmatic or theological settlement, as long as Rome has 
not spoken, but questions of discipline, education of clergy 
and faithful in seminaries and schools, the administration 
of the Sacraments, parish boundaries, etc The matter is 
made much easier by the new Code, which states the uni- 
versal law, modifications of which, either restrictive or 
extensive, are reserved to the Holy See. Where the Code 
is not explicit enough, a council must apply to Rome (S. 
C. Concilii). 

Finally, though the canon says nothing about it, the 
tnode of proceeding at a council is by vote. The vote may 
be secret or open. This point is to be settled in a pre- 
liminary session. The presiding officer has no pre- 
ponderating voice, even where there is a tie, 1 ' unless the 
papal legate to a plenary council has received special in- 
structions from the Holy See. 



11 C. as. X, V. 1; S>m. 34, 0. a l a Smith, Elements. I. n. ft, 

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306 ECCLESIASTICAL PERSONS 

Can. 291 

§ 1. Absoluto Concilio plenario aut provincial!, 
praeses acta et decreta omnia ad Sanctam Sedem trans- 
mittal ncc eadem antea promulgentur, quam a Sacra 
Congregatione Concilii expensa ct recognita fuerint; 
ipsimet autem Concilii Patres designent et modum 
promulgationis decretorum et tempus quo decreta pro- 
mulgata obligare incipiant 

§ 2. Decreta Concilii plenarii et provincialis promul- 
gata obligant in suo cuiusque territorio universo, nee 
Ordinarii locorum ab iisdem dispensare possunt, nisi 
in casibus particularibus et iusta de causa. 

After the close of a plenary or provincial council the 
president of the same shall send all the acts and decrees 
to the Holy See, and they must not be promulgated until 
the S. C of the Council has examined and approved them. 
The mode of promulgating the decrees as well as the date 
of their going into effect is left to the Fathers of the 
council. 

The decrees of a plenary or provincial council, after 
being duly promulgated, oblige throughout the whole 
territory for which they were made, and the Ordinaries 
of the various dioceses cannot dispense from them except 
in individual cases and for a just reason. 

The efficacy of conciliar decrees is here determined, first 
conditionally, and then as to extent. The condition is 
that the decrees are approved by the highest authority, 
j. e., the Holy See, through the S. C. of the Council. This 
S. Congregation first obtains the opinion of one consultor, 
and then that of all the consultors, or at least five of 
them. Then the S. C. deliberates in pleno congressu and 
instructs the agent of the province to have the decrees 



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printed. 18 The approval is given either in forma specifica 
or in forma communi. The former is generally expressed 
by the verbal insertion of the acts and decrees in the docu- 
ment of approbation, or else the printed decrees contain 
the formula " ex certa scientia, ex plenitudine potestatis 
approbamus!' etc. The acts and decrees of the Latin- 
American Plenary Council held in Rome 1899 were ap- 
proved by the Holy See with the clause, " quibuscunque 
minime obstantibus" and it was the general assumption 
that they were approved in forma specifica. 14 The same 
cannot be said concerning our American plenary councils, 
for they were, as is commonly held, 18 approved in forma 
communi, i. e. t by simple recognition. It appears that 
the Code refers only to recognition, without determining 
the nature of the approbation given. But the Code 
also supposes that the acts and decrees of a council obtain 
legal force by mere recognition as soon as promul- 
gated, i. e., from the date of promulgation fixed by the 
Fathers of the council. In view of this fact the former 
distinction between approbation in forma specifica and 
approbation in forma communi appears to be of little 
practical value. This deduction is corroborated by an 
answer of the Secretary of State to the Archbishop of St. 
Louis, dated Sept 30, 1896, which declares that the de- 
crees of a plenary council are binding even if recognized 
only in forma communi and not inserted in the diocesan 
statutes. 10 

As to the interpretation of the decrees of plenary and 
provincial councils the general rules laid down in our 
Code " must be observed. These grant the right of inter- 

18 " Sapicnti consUio" (A. Ap. 10 Smith, L c, n. 72. 

S., I, 95). 10 Am, Eccl. Rev. 1896 (Vol. 15), 

14 Anaiccta Ecclesiastic*, 1900 p. 545. 
(VIII), p. 145 *- 1T Cin. <7-*0- 



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308 ECCLESIASTICAL PERSONS 

prctation to the legislators. However, the case here is a 
peculiar one, since the decrees have no obligatory force 
unless approved by the Roman Congregation. We think 
it will be safe to adopt the rule laid down by the Fathers 
of the Latin-American Plenary Council, vis.: that the 
bishops have power to settle doubts arising from the word- 
ing of the text, as long as their interpretation does not 
affect the substance and juridical value of the same. In 
the latter case, the doubts should be submitted to the 
Congregation of Extraordinary Affairs. 18 For our coun- 
try the authentic interpretation of the decrees of plenary 
and provincial councils belongs to the S. Congregation of 
the Council. 

With regard to dispensations, the Code is more explicit, 
permitting the Ordinaries to dispense from or relax the 
decrees in individual cases for a just reason. The reason 
why this power of dispensation is limited and why the 
limitation affects the metropolitans as well as their suffra- 
gans — though they are themselves the legislators — lies 
in the fact that their decrees have been elevated into a 
higher sphere by a superior, not only through papal in- 
terposition, but also by a collective act of the legislators. 1 * 
Particular cases means not such as happen daily and 
ordinarily (commimiter contingentes), but exceptions, to 
single persons and parishes. 

Can. 292 

§ 1. Nisi aliter pro peculiaribus locis a Sede Apo- 
stolica provisum fuerit, Metropolita, eoque deficiente, 
antiquior e Suffraganeis ad normam can. 284, curet ut 

ia Archiv fir K.-R., iooi (Vol. 15. nn. 4S.1 Kenrick, Theohgia 
81). p. 54 f- lioratis, 1860, I, 118 (tract. IV, c 

lVSurcc. D* Ltgibus, 1. VI, o. 6, n. 49). 



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CANON 292 309 

Ordinarii locorum, saltern quinto quoque anno, stato 
tempore apud Metropolitam aliumve Episcopum com- 
provincialem conveniant, ut, collatis consiliis, videant 
quaenam in dioecesibus agenda sint ut bonum re- 
ligionis promoveatur, eaque praeparent de quibus in 
futuro Concilio provinciali erit agendum. 

§ 2. Etiam Episcopi aliique de quibus in can. 285, una 
cum aliis Ordinariis convocari et convenire debent 

§ 3. Iidem Ordinarii congregati sedem proximi con- 
ventus designent 



Unless otherwise provided for by the Apostolic See, the 
metropolitan, or if he fails to act, the senior suffragan 
bishop (according to can. 284) should see to it that the 
Ordinaries of the dioceses meet every five years at a 
stated time, at the metropolitan's or a fellow-bishop's 
residence, in order to deliberate about the affairs of their 
dioceses and thus foster the good of religion, as well as 
to prepare the questions to be treated in a future provin- 
cial council. 

The bishops and others mentioned in can. 285, together 
with other Ordinaries, should be called and must attend a 
meeting to appoint the place for the next meeting. 

All these regulations are intended to secure a united 
and uniform proceeding as well as to foster charity. 



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CHAPTER VIII 

VICARS AND PREFECTS APOSTOLIC 



There is a material difference between the vicars Apos- 
tolic formerly appointed for, e. g., Thessalonica or Aries, 
and the vicars Apostolic now appointed for missionary 
countries. The former were quasi legati nati, 1 whereas 
the vicars of whom the present canon treats are really 
vicars of the Apostolic See with episcopal jurisdiction, 
appointed for regions where a full diocesan organization 
cannot as yet be established or restored. Thus a vicar 
Apostolic was appointed for Brunswick and Luneburg, 
in 1607, under the pontificate of Alexander VII (1655- 
67), and one for Malabar, where Nestorian disturbances 
made such a measure imperative. To-day there are 
vicars or prefects Apostolic in all the territories subject 
to the Propaganda. 2 In England a vicar Apostolic 
(Blackwell) was appointed in 1598, and vicars Apostolic 
continued to govern the English Church until 1850, when 
the hierarchy was reestablished. Alaska is now the sole 

vicariate in our country. 

- 
■ 

Can. 293 

§ 1. Territoria quae crecta non sunt in dioeceses re- 
guntur per Vicarios aut Praefectos Apostolicos; qui 
omnes ab una Apostolica Sede nominantur. 

§ a. Vicarius et Praefectus Apostolicus possessionem 

< 

1 Smith, /. c, I, n. 524. 2 Benedict XIV, De Syn, Dio*e. t 

IT, io, jff. 
310 



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sui territorii capiunt, ille litteras apostolicas, hie de- 
cretum seu patentes litteras Sacrae Congregationis de 
Prop. Fide per se vel per procuratorem ostendentes 
ei qui territorium regit ad normam can. 309. 

Can. 294 

§ 1. Vicarii et Praefecti Apostolici iisdem mribus et 
facultatibus in suo territorio gaudent, quae in propriis 
dioecesibus competunt Episcopis residentialibus, nisi 
quid Apostolica Sedes reservaverit. 

§ 2. Etiam ii qui charactere episcopali carent, pos- 
sum, intra sui territorii fines ac perdurante rnunere, 
omnes benedictiones Episcopis reservatas, una ponti- 
ficali excepta, impertiri, calices, patenas et altaria 
portatilia cum sacris oleis ab Episcopo benedictis con- 
secrare, indulgentias quinquaginta dierum concedere, 
confirmationem, primam tonsuram et ordines minores 
conferre ad normain can. 782, § 3, 957, § 2. 

Apostolic vicars and prefects enjoy the same rights 
and faculties in their respective territories as residential 
bishops in their dioceses, unless the Apostolic See makes 
reserves. Even though destitute of the episcopal charac- 
ter they may, within the limits of their own territory, and 
during the time of their office, impart the blessings re- 
served to bishops, except the pontifical blessing proper, 
may consecrate chalices, patens, and portable altars with 
oil blessed by a bishop, grant indulgences of fifty days, 
and confer the tonsure and minor orders according to can. 

782, § 3. 957. § 2. 

Blessings reserved to bishops are: the blessing of 
abbots, the dedication and consecration of churches, the 
blessing and laying of corner-stones, the blessing and 



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reconciliation of cemeteries. 8 The consecration of fixed 
altars is not expressly mentioned, and therefore probably 
not included in these faculties. 

All these faculties, with the exception of such as re- 
quire the episcopal character or cannot be exercised with- 
out the use of holy oils, can be communicated to simple 
priests.* 



■ 



■"■ 



Can. 295 

§ i. Vicarii ct Praefecti Apostolici ab omnibus mis- 
sionariis, etiam religiosis, possunt ac debent exigere ut 
suas patentes seu alias quasvis eorum missionis, desti- 
nationis, constitutionis ac deputationis litteras exhi- 
beant, easquc cxhibere recusantibus excrcitium cuius- 
vis ministerii ecclesiastici prohibcrc. 

§2. Omnes missionarii, etiam regulares, licentiam 
sacri ministerii exercendi petant a Vicariis et Prae- 
fectis Apostolicis, qui tamen earn ne denegent, nisi 
singulis et gravem ob causam. 



Apostolic vicars and prefects may and must demand of 
all missionaries, even religious, that they show their cre- 
dentials or other letters explaining their mission, destiny, 
appointment, and deputation, and in case of refusal must 
forbid them the exercise of any ministerial functions. 

All missionaries, including (exempt) regulars, must ask 
permission of the vicars or prefects Apostolic to exercise 
the sacred ministry. This permission should not be de- 
nied except in single cases and for weighty reasons. 

This is but a repetition of former injunctions. 5 



8 Van der Slappen, Sacra Litur- B Clement IX, " Speculatores," 

gia, IV, p. 347. Sept. 13, 1669; Benedict XIV, 

* Benedict XIV, " Apostclicum Const, cit. 
ninistcnuni." May 30, 1753, S 4- 



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Can. 296 

o 

§ i. Etiam missionarii rcgulares subiiciuntiu Vicarii 
ct Pracfecti Apostolici iurisdictioni, visitationi ct cor- 
rection! in iis quae pertinent ad missionum regimen, 
curam animarum, Sacramentorum administrationem, 
scholarum directionem, oblationes intuitu missionis 
factas, implementum piarum voluntatum in favorem 
eiusdem missionis. 

§ 2. Quamvis Vicariis et Praefectis Apostolicis nullo 
modo liceat, praeter casus in iure praevisos, se in dis- 
ciplinam religiosam ingerere quae a Superiore religioso 
depended si tamen circa ea, de quibus in superiore 
paragraphs confiictus oriatur inter mandatum Vicarii 
aut Pracfecti Apostolici et mandatum Superioris, prius 
praevalere debet, salvo iure recursus in devolutivo ad 
Sanctam Sedem et salvis peculiaribus statutis a Sede 
Apostolica probatis. 

All missionaries belonging to (exempt) regular orders 
are subject to the jurisdiction, visitation, and correction 
of the vicar or prefect Apostolic in matters pertaining to 
the government of the mission, the care of souls, the ad- 
ministration of the Sacraments, the direction of schools, 
the gifts of the faithful made for the mission, and the 
execution of pious legacies made in behalf of the same. 

Although the vicar or prefect Apostolic has no right, 
except in cases provided by law, to interfere with the re- 
ligious discipline, which depends on the religious superior, 
yet in the matters mentioned in § 1 of this canon, should 
a controversy arise between a command of the vicar or 
prefect and of the superior, the former must prevail, 
without prejudice to the right of recourse in devolutivo 
to the Holy See and to special statutes approved by the 
latter. 



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314 ECCLESIASTICAL PERSONS 

That regulars in charge of souls should be subject to the 
jurisdiction of the Ordinary in all matters pertaining to 
the exercise of this office, was established by the Council 
of Trent.* Benedict XIV ordained furthermore that no 
appeal or injunction should delay or invalidate the exe- 
cution of these decrees and their consequences as applied 
by the Ordinaries, 7 and logically extended the law to the 
regular missionaries. 8 New experiences and questions 
elicted the remarkable constitution of Leo XIII, 
"Romanes Pontifices" of May 8, i88r, which endeavored 
to settle some disputes between Ordinaries and regulars 
employed in parish or mission work. The rules laid down 
in that Constitution have entered almost entirely into the 
new Code, as may be seen in the section on religious. 
Here we will only add a note on schools. Leo XIII has 
subjected all elementary (parish) schools conducted by 
religious, exempt as well as non-exempt, to the direction 
and visitation of the bishops, but in the same Constitution 
states that other schools, colleges, etc., are not subject to 
the Ordinary, though they require his permission for 
their erection. 9 

As to gifts made for the missions, the same Constitu- 
tion ordains that all donations made for missionary pur- 
poses must be used for that purpose. Broadly speaking, 
Sunday and house collections, pew rent and stole fees are 
mission donations and must be employed as such and ac- 
counted for to the vicar or prefect Apostolic. 

What in dcvolutivo means has already been explained. 
Religious orders (the Society of Jesus, for instance) 



Q 



t Sess. 25, c 11 de regg. fl Can. 1381, however, gives the 

7 " Ad nil itantis," March 30, Ordinary the right to inspect the 
1742, 6 8. schools — except house schools — 

8 " Apostolicum ministerium," of regulars as to their religious and 
May 30, 1753, 9 la. moral training. 



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CANON 297 3i 5 

which have statutes concerning their missionaries ap- 
proved by the Holy See, are entitled to have these statutes 
respected by vicars or prefects Apostolic 

Can. 297 

Deficientibus e clcro saeculari sacerdotibus, Vicarii 
et Pracfccti Apostolici possunt, audito eorum Su- 
periors, cogere religiosos, etiam exemptos, vicariatui 
vel praefecturae addictos, ad animarum curam exercen- 
dam, salvis pariter peculiaribus statutis a Sede Apo- 
stolica probatis. 

Where there is an insufficient number of secular priests, 
the vicar or prefect may, upon having heard their superior, 
compel religious, even those belonging to exempt orders, 
who are attached to the vicariate or prefecture, to per- 
form pastoral work, with due regard, however, to their 
peculiar statutes approved by the Apostolic See, as stated 

in " Speculatores" of Clement IX, Sept. 13, 1669. 

■ 

Can. 298 



Si qua dissidia in iis quae ad curam animarum perti- 
nent, sive inter singulos missionaries, sive inter diver- 
sas religiones, sive inter missionaries et alios quoslibet 
oriri contigerit, ea quamprimum componere curent 
Vicarii ac Pracfecti Apostolici, qui huiusmodi quae- 
stiones, ubi opus fuerit, dirimant, integro tamen iure 
recursus ad Apostolicam Sedem, qui decreti effectum 
non suspendit. 



If any controversy should arise about matters pertain- 
ing to the care of souls between individual missionaries, 
or different religious orders, or between missionaries and 



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316 ECCLESIASTICAL PERSONS 

others, let the vicars or prefects settle them as quickly as 
possible. The right of recourse in devolutive) to the 
Apostolic See, however, remains untouched. 

That such controversies may arise, the incidents re- 
corded in several constitutions of Benedict XIV amply 
prove. This Pontiff had to settle the somewhat heated 
dissensions between the Dominicans and the Jesuits about 
Chinese rites, and solve doubts about various customs re- 
garding the administration of baptism and nuptial cere- 
monies. 10 

Can. 299 

Vicarii Apostolici obligatione tencntur Sacra Limina 
Beatorum Apostolorum Petri et Pauli visitandi eadem 
prorsus lege, qua Episcopi residentiales ad normam 
can. 341 ; cui tamen muneri, si quid graviter obstet ne 
per se ipsi illud expleant, satisfacere possunt per pro- 
curatorern etiam in Urbe degentem. 

Vicars Apostolic are, like residential bishops, bound 
to make the visitatio ad limina (or tombs) of SS. Peter 
and Paul. If a serious obstacle prevents them from per- 
forming this duty, they may send a procurator, or com- 
mission some one living in the Eternal City. An explana- 
tion of this follows under can. 341. 

Can. 300 



§ 1. Ad normam can. 340, Vicarii ac Praefecti 
Apostolici tenentur obligatione Sedi Apostolicae cx- 
hibendi plenam accuratamque relationem de suo quis- 
que pastorali officio, deque omnibus quaecunque ad 

a 
c 

10 " Ex quo singulari," July if, i744» "Omnium solicitudinum," 
1743; "Redditae nobis," Dec 19, Sept. IS, 1744. 



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CANON 301 317 

statum vicariatus vel praefecturae, ad missionaries, ad 
religiosos, ad populi disciplinam, ad scholarum frequen- 
tiam, ad fidelium denique ipsorum curae commissorum 
salutem qua vis ratione pertineant ; quae relatio scripta 
esse debet et subscripta turn ab ipso Vicario aut Prae- 
fecto turn ab uno saltern ex consiliariis de quibus in 
can. 30a. 

§ 2. Imo etiam sub cuiusque anni exitum ad Sanctam 
Sedem mittant elenchum seu numerum conversorum, 
baptizatorum annuaeque Sacramentorum administra- 
tionis una cum aliis notatu dignioribus. 



As prescribed in can. 340, Apostolic vicars and pre- 
fects are obliged to send each year a full and accurate 
report of their pastoral office and everything that touches 
the state of their vicariate or prefecture, or the mission- 
aries, the religious, the discipline of the people, the fre- 
quenting of schools, the welfare of the faithful committed 
to their care. This report must be made in writing, 
signed by the vicar or prefect and by at least one of his 
consultors (see can. 302). Each vicar and prefect shall, 
moreover, at the end of each year, send to the Holy See a 
report on the number of converts, baptisms, and the an- 
nual administration of the Sacraments, together with 
other noteworthy items. 



Can. 301 

§ 1. In regione sibi commissa commorentur, a qua 
sine gravi et urgenti causa per notabile tempus iis 
abesse ne liceat, inconsulta Sede Apostolica. 

§ a. Regionem sibi concreditam, quandocumque sit 
opus, debent ipsi per se vel, si legitime irnpediti f uerint, 
per ahum visitare eaque omnia in visitatione expendere, 



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318 ECCLESIASTICAL PERSONS 

quae ad fidcm, bonos mores, Sacramentorum admini- 
strationem, praedicationem verbi Dei, festorum obser- 
vantiam, cultum divinum, iuventutis institutionem, di- 
sciplinam ecclesiasticam referuntur. 

v- 

"-' 

Apostolic vicars and prefects must reside in the terri- 
tory assigned to them and are not allowed to be absent 
therefrom for any considerable length of time without a 
weighty and urgent reason and without having consulted 
the Apostolic See. 

Whenever necessary, they must visit their district either 
themselves or, if impeded, send another, and at this visita- 
tion take due measures respecting the faith, good morals, 
the administration of the Sacraments, preaching, the ob- 
servance of feasts, divine worship, the education of youth, 
and ecclesiastical discipline. 

These two paragraphs enjoin residence and diocesan 
•visitation; that a wide margin is left as to place and 
time is but natural in missionary countries. Due regard 
must necessarily be taken of distance and transportation 
facilities. Weighty and urgent reasons may arise at any 
moment and cannot always be foreseen. 

Can. 302 



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Constituant Consilium ex tribus saltern antiquioribus 
et prudentioribus missionariis, quorum sententiam, 
saltern per epistolary audiant in gravioribus et diffi- 
cilioribus negotiis. 



They shall appoint a council consisting of at least three 
of their older and more experienced missionaries, whose 
opinion they shall hear, at least by letter, in more im- 
portant and difficult matters. 



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CANON 303 319 

Can. 303 

Prout siverit opportunitas, missionaries saltern prae- 
cipuos turn religiosos turn saeculares proprii territorii 
congregent scmel saltern in anno, ut possint ex singu- 
lorum experientia et consilio deducere quae sint ordi- 
nanda perfectius. 

As far as circumstances permit, they shall also convoke 
the principal missionaries, religious as well as secular, 
once a year, in order to learn from their expenence and 

advice what may be more perfectly arranged. 

■ 

Can. 304 

§ i. Legibus quae de archivo constituendo Episcopis 
praescribuntur, etiam Vicarii ac Praefecti Apostolici, 
habita locorum personarumque ratione, aeque tenentur. 

§ 2. Parker quae de Conciliis plenariis et provin- 
cialibus can. 281-291 praescribuntur, applicari debent, 
congrua congruis referendo, Conciliis plenariis vel rc- 
gionalibus et provincialibus in regionibus Sacrae Con- 
gregationi de Prop. Fide subiectis; quae de Synodo 
dioecesana can. 356-362, Synodo vicariatus apostolici; 
sed nullum est praefinitum tempus pro Concilii provin- 
cialis et Synodi celebratione, et canones Conciliorum, 
antequam promulgentur, recognosci debent a Sacra 
Congregatione de Prop. Fide. 

o 

Vicars and prefects, like bishops, but with due consider- 
ation of persons and places, are obliged to keep archives 
for the documents pertaining to their districts. Simi- 
larly, but also in a manner proportionate to circumstances, 
the prescriptions concerning plenary and provincial coun- 
cils (can. 281-291) must be applied to the provinces sub- 



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320 ECCLESIASTICAL PERSONS 

St 

jcct to the Propaganda; also enactments regarding dio- 
cesan synods (can. 356-362). However, no definite time 
is fixed for the celebration of either provincial councils 
or diocesan synods, and the canons of both must, before 
promulgation, be recognized by the Propaganda. Here 
it is permissible to doubt whether the religious superiors 
are to be excluded from participation in a plenary council. 



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Can. 305 

Studiosissime curent, onerata graviter eorum con- 
scientia, ut ex christianis indigents seu incolis suae re- 
gionis probati clerici rite instituantur ac sacerdotio 
initientur. 



They are under strict obligation to see to it that worthy 
Christian natives or inhabitants of their province are 
properly trained and raised to the priesthood. This most 
Apostolic injunction has been insisted upon in various 
Apostolic constitutions and inculcated again and again by 
the S. C. Prop. Fide. Thus, on Nov. 23, 1845, the latter 
enjoined that natives should be trained and employed, not 
only in inferior mission work, such as catechizing, but 
also as missionaries, who in course of time might become 
pastors of souls and even vicars or prefects Apostolic. 
The contrary practice was condemned as opposed to the 
intentions of the Holy See and out of keeping with the 
spirit of the sacred ministry. 



Can. 306 

Missae sacrificium pro populis sibi cornmissis appli- 
care debent, saltern in sollemnitatibus Nativitatis 
Domini, Epiphaniae, Paschatis, Ascensionis, Pente- 
cost.es, sanctissimi Corporis Christi, Imxnaculatac Con- 



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CANON 307 321 

ceptionis et Assumptions Beatae Mariae Virginis, 
Sancti Ioseph eius sponsi, Sanctorum Apostolorum Pe- 
tri et Pauli, Omnium Sanctorum, servato praescripto 
can- 339i §§ 2 seqq. 

They must apply the holy sacrifice of the Mass for the 
people entrusted to them at least on the feasts of Christ- 
mas, Epiphany, Easter, Ascension, Pentecost, Corpus 
Christi, the Immaculate Conception, the Assumption of 
the B. V. Mary, St Joseph, SS. Peter and Paul, and All 
Saints, with due regard to the rules laid down in can. 339, 

§2ff. 

Can. 307 



§ 1. Ipsis non licet, inconsulta Sede Apostolica, con- 
cedexe missionariis ab ea missis veniam in perpetuum 
deserendi vicariatum aut praefecturam, vel alio trans- 
eundi, nee eos quoquo modo expellere. 

§2. In casu autem publici scandali possunt ipsi, 
audito suo Consilio, et si agatur de religiosis, prae- 
monito, quantum fieri potest, Superiore, missionarium 
8tatim removcre, facta tamen illico certiore Apostolica 
Sede. 

They are not allowed, without consulting the Apostolic 
See, to grant to the missionaries sent out by the same 
(Apostolic See) perpetual leave of absence from their 
vicariate or prefecture, or permission to go elsewhere, or 
to expel them in any way. 

In case a missionary has given public scandal, however, 
they may, after having heard their counsellors, and, if 
the culprit is a religious, after serving notice, when pos- 
sible, upon his superior, remove him at once and then 
notify the Apostolic See as soon as possible. 11 

U Clement IX, " Speculatorei/'Sept. 13, 1669; Leo XIII, "Ad 



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322 ECCLESIASTICAL PERSONS 

Can. 308 

Vicariis et Praefectis, charactcre cpiscopali auctis, 
privilegia honorifica competunt, quae ius concedit 
Episcopis titularibus; si autem charactere cpiscopali 
careant, habent tantum, durante raunere et in proprio 
territories insignia et privilegia Protonotariorum apo- 
stolicorum de numcro participantium. 



Vicars and prefects, if they have the episcopal charac- 
ter, enjoy the same prerogatives of honor which the law 
grants to titular bishops; if they are not consecrated 
bishops, they are entitled, during their tenure of office and 
in their own territory only, to the insignia and privileges 
of prothonotaries Apostolic de numero participantium. 

As titular bishops, vicars and prefects rank after resi- 
dential bishops. Their place at councils is expressly de- 
fined in the Code. 18 

As to the protonotarii apostolici de numero participan- 
tium, Pius X {"Inter tnultiplices," Feb. 25, 1905) regu- 
lated their dress, which is that of regular prelates, with the 
right of wearing a ring and the faculty of pontificating 
outside of the Eternal City, but only with the faldistorium 
(faldstool) and without the seventh candle. Nor are they 
allowed to bless the people when entering the church. 
They say not " Pax vobis," but " Dominus vobiscum." 
They wear the pectoral cross only when they pontificate. 
Their mitre is not the pretiosa (studded with gems), but 
of gold cloth or silk, and their skull-cap of black silk. 
They always need the consent of the Ordinary if they 
wish to celebrate pontifical High Mass. 13 



extremu Orientis." June 24. 1893: 18 Can. 348 f. 

Instructio S. C. Prop. Fide in 13 Cf. Am. Eccl. Rev., 1905 (Vol. 



Collectio Lacensis, VI, 663 ff. 33), p. 6ia ff; Vol. 34, p. 74 f. 



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CANON 309 323 

Can. 309 

§ i. Vicarii ct Pracfecti, ubi pzimum in tcrritorium 
suum advenerint, dcputent ex uno vcl altcro clcro Pro- 
vicarium vel Pro-praefcctum idoncum, nisi Coadiutor 
cum futura successione a Sancta Sedc datus fueiit. 

§ 2. Pro-vicarius aut Pro-praefectus nullam habet, 
vivcnte Vicario aut Praefecto, potestatem, nisi quae 
fuerit ab eodem sibi commissa ; sed defkiente Vicario 
aut Praefecto, vel eorum iurisdictione impedita ad 
noimam can. 429, § 1, to turn debet regimen assumere 
et in hoc munere permanere, donee a Sancta Sede aliter 
fuerit pro visum. 

§ 3. Pari modo Pro-vicarius aut Pro-praefectus, qui 
titular! successerit, statim deputet ecclesiasticum 
virum, qui sibi, ut supra, in munere succedat. 

§ 4. Si forte contingat ut nemo sive a titulari sive a 
pro-titulari uti administrator fuerit designates, tunc 
senior in vicariatu vel praefectura, is, nempe, qui sit 
praesens in territorio et suas destinaticnis litteras in 
eodem prius exhibuerit, censetur delegatus a Sancta 
Sede ut regimen assumat, et inter plures aeque seniores 
antiquior sacerdotio. 

Vicars and prefects shall, immediately upon entering 
their territory, appoint a fit clergyman as pro-vicar or pro- 
prefect, unless the Holy See has already assigned a co- 
adjutor with the right of succession. 

The pro-vicar or pro-prefect has no power during the 
lifetime of the vicar or prefect, except in so far as the 
latter has committed it to him; but in case the vicar or 
prefect ceases to officiate, or if his jurisdiction is impeded, 
according to can. 429, § 1, the pro-vicar or pro-prefect 
assumes the whole government and administers it until 
the Holy See shall provide otherwise. 



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324 ECCLESIASTICAL PERSONS 

A pro-vicar or pro-prefect who has succeeded the vicar 
or prefect proper, shall immediately appoint an ecclesiastic 
to succeed him. 

Should the appointment of an administrator have been 
omitted either by the vicar or the pro-vicar, the prefect 
or the pro-prefect, then the senior of the vicariate or pre- 
fecture, i. e. t the priest who is present in the territory and 
has first shown the papers of his missionary appointment, 
must be looked upon as delegated by the Holy See to 
assume the reins, or if there are several of equal seniority, 
the one who has been longest in the priesthood. 

Benedict XIV provided that where no coadjutor with 
the right to succession had been appointed, the vicar Apos- 
tolic should name a pro-vicar or quasi vicar-general, who 
in case of the demise of the vicar should immediately suc- 
ceed him. 14 In another Constitution 1B he limited the ap- 
pointment of a vicar-general to territories in which there 
were no chapters or consultors who would be entitled to 
choose a vicar-capitular. But he also modified the requi- 
sites (doctor title) for the office of vicar, demanding only 
that he be " habUis et idoneus." Our canon modifies this 
law in so far as not only the vicars Apostolic but also the 
prefects Apostolic are instructed to appoint pro-prefects, 
in order to obviate any uncertainty or confusion regard- 
ing the government of the territory. The canon makes 
no distinction between territories with chapters or con- 

a 

cultors and such as have none of these, but merely 
enjoins that a pro-vicar or pro-prefect be appointed im- 
mediately upon entering his office, or rather his district. 
The power of these pro-vicars and pro-prefects is sus- 
pended until the vicars and prefects go out of office, just 
as Benedict XIV had ordered. 



i» " Ex ■ublimi," Jan. .:6, 1753- i* m Qumb ex rablimi," Aug. 8, 

»755. 



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CANON 310 325 

Can. 310 

§ 1. Ad quos vicariatus aut praefecturae cura dc- 
venerit ad normam can. 309, ii dcbent quamprimum 
certiorem facere Apostolicam Sedem. 

§2. Interim uti possunt omnibus facultatibus sive 
ordinariis ad normam can. 294, sive delegatis, quibus 
Vicarius vel Praef ectus pollebat, nisi commissae fuerint 
ob industriam personae. 

Those who rule a vicariate or prefecture (ad interim) 
according to can. 309, must inform the Apostolic See as 
soon as possible. In the meanwhile they enjoy the facul- 
ties, both ordinary (can. 294) and delegated, which were 
enjoyed by the vicar or prefect himself, with the excep- 
tion of such as were granted with sole respect to person. 

These faculties in certain formularies — the personal 
faculties are not contained in these formularies — are 
given by the S. C. of the Propaganda. 



Can. 311 

Qui vacariatui vel praefecturae apostolicae ad certum 
tempus praepositus est, debet in regimine cum omnibus 
facultatibus sibi concessis permanere, licet definitum 
tempus fuerit praeterlapsum, donee successor canoni- 
cam sui muneris possessionem ceperit 



One who is appointed to a vicariate or prefecture for a 
certain time only, must continue to administer the govern- 
ment with all the faculties granted to him, until his suc- 
cessor has taken canonical possession of the office, even 
though this should happen after his own term has ex- 
pired. 



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CHAPTER IX 
apostolic administrators 

Can. 312 

Dioecesis canonice erectae regimen, sive plena, sive 
vacante sede, aliquando Summus Pontifex ob graves 
et speciales causas Administrator! Apostolico vel in 
perpetuum vel ad tempus committit 

The Sovereign Pontiff, for weighty and special reasons, 
sometimes entrusts a canonically established diocese, either 
during the occupancy of the Ordinary or during a vacancy, 
to an Apostolic administrator, either permanently or for a 
limited period. 

Administrators, sometimes styled visitatores, occur in 
the Decretals of Boniface VIII. They were appointed 
either by the Roman Pontiff or by the chapter, the synod 
or the metropolitan, but only those appointed by the Pope 
had full power. 1 Besides it was customary to allow young 
nobles to assume the government of a diocese as ad- 
ministrators in temporal, especially princely, affairs. 2 
Later it became the exclusive right of the Pope to assign 
an administrator to a diocese. This right he often exer- 
cised in times of politico-ecclesiastical troubles, such as 
happened, e. g., at Cologne, and lately at Genoa. The 
expedient of appointing an Apostolic administrator is oc- 
casionally resorted to when the financial or religious con- 

1 C. 42, 6*, I, 6; e. 4, <*, I, 8. 9 SAgmuller, K.R., 1 ed. ( p. 3*3- 

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CANON 313 327 

ditions of a diocese are in a precarious state. The ad- 
ministrator is named in pleno congressu by the S. C. Con- 
sistorialis, and the letters of appointment are dispatched 

in the form of a Bull. 8 

s 

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Can. 3 

§ i. Quilibet Administrator Apostolicus, si datus 
fuerit dioecesi, sede plena, canonicam administrationis 
possessionem init, ostendens litteras suae nominationis 

a 

turn Episcopo, si sit mentis consiliique compos et in 
dioecesi versetur, turn etiam Capitulo, ad normam can. 

I 334. § 3- 

§ 2. Si sedes fuerit vacans, vel si Episcopus non sit 

mentis consiliique compos, aut in dioecesi non moretur, 
Administrator Apostolicus possessionem sumit ad in- 
star Episcopi secundum cit can. 334, § 3. 



Every Apostolic administrator given to a see whilst 
still occupied by a bishop (sede plena) enters upon the 
canonical possession of his administration by presenting 
the letters of his appointment to the bishop, if the latter 
is in full possession of his mental faculties and dwells in 
the diocese, as well as to the chapter, according to can. 

334. § 3. 

If the see is vacant, or the bishop is not in full posses- 
sion of his mental faculties, or if he does not dwell in the 
diocese, the administrator takes possession like a new 
bishop, according to can. 334, § 3. 

We believe "mentis consiliique compos" here means 
the full possession of one's mental faculties, for it may be 
that one can think rationally, but lacks the faculty of 
memory, or by reason of softening of the brain has no 

• " Sapientl consilic," June 29, {A. Ap. S., I, 83 t.) 
1508. P. II, c. VII. art a, n. 7 



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will power. The so-called lucida interwlta must not be 
taken into account here. 

A bishop may dwell outside of his diocese either casu- 

Of 

ally or fortuitously, or culpably, or as an exile, by de- 
portation. Again, he may be in the diocese, but held a 
quasi-prisoner. In the latter case, too, it may be said that 
he has no power of his own (itnpos consilii). 



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Can. 314 

Iura, officia ac privilegia Administrators Apostolici 
desumantur ex litteris suae deputations, vel, nisi in 
eisdem aliud caveatur expresse, ex praescripto ca- 
nonum qui sequuntur. 

The rights, duties, and privileges of an Apostolic ad- 
ministrator must be gathered from the letter of appoint- 
ment, or if no special provision is therein made, from the 
rules laid down in the following canons. 



Can. 315 



§ 1. Administrator Apostolicus permanenter consti- 
tutus iisdem iuribus et honoribus fruitur, iisdemque 
obligationibus tenetur, ac Episcopus residentialis. 

§ 2. Si ad tempus datus sit: 

i.° Eadem iura ac officia habet, ac Vicarius Capitu- 
laris; sed, sede plena, potest dioecesim visitare ad 
tramitem iuris; nee tenetur obligations applicandac 
Missae pro populo, quae Episcopum gravat; 

2. Ad honorifica privilegia quod attinet, valeat prae- 
scriptum can. 308; sed Episcopo qui, ad aliam sedem 
translatus, prioris retinet administrationem, in hac quo- 
que omnia Episcoporum rcsidentialium honorifica 
privilegia competunt. 



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CANON 316 329 

An Apostolic administrator, if appointed permanently, 
enjoys the same rights and honors and is bound by the 
same obligations as a residential bishop. 

If he is appointed only for a limited time, he has the 
same rights and duties as a vicar-capitular, but may visit 
the diocese according to law; but he is not obliged to 
apply the Mass for the people, as a bishop is. 

As to honorary prerogatives, an Apostolic administrator 
enjoys those of a titular bishop (see can. 308), or, if he 
is not a bishop, those of Apostolic prothonotaries de 
nutnero participantiunt. 

A bishop transferred to another see, who retains the 
administration of his former diocese, enjoys also in the 
latter all the honorary privileges of a residential bishop. 



Can. 316 

§ 1. Si Administrator Apostolicus dioecesi, sede 
plena, praeficiatur, iurisdictio Episcopi ciusque Vicarii 
Generalis suspenditur. 

§2. Quanquarn autem Administrator Apostolicus 
Episcopi auctoritati non subest, non debet tamen se 
immiscere causis Episcopum ipsum spectantibus, neque 
in Vicarium eius Generalem iudicium seu processurn 
instruere aut animadvertere ob acta praetcritae admi- 
nistrationis. 

If an administrator is appointed for a diocese while its 
bishop is still alive, the jurisdiction of the bishop and of 
his vicar-general is suspended. 

Although the administrator is not subject to the au- 
thority of the bishop, yet he must not meddle in affairs 
which concern the bishop personally, nor try judicially or 
punish the vicar-general for acts of the former admin- 
istration. 



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330 ECCLESIASTICAL PERSONS 

Can. 317 

Si impedita fuerit iurisdictio Administratoris Apo- 
stolici aut si idem Administrator defecerit, Sedes Apo- 
stolica statim moneatur; et interim, si dioecesis vacet 
aut Episcopus non sit sui compos, valent praescripta 
can. 429 seqq. ; secus Episcopus dioecesim regit, nisi 
Sedes Apostolica aliud praestituerit. 

If the jurisdiction of an Apostolic administrator is im- 
peded, or if he goes out of office, the Holy See must be 
immediately informed ; meanwhile, if the see is vacant or 
the bishop is not in full command of his faculties, the pre- 
scription of can. 429 ff. must be followed; in all other 
cases the bishop rules the diocese, unless the Apostolic See 
has decided otherwise.* 

Can. 318 



§ 1. Administratoris Apostolici iurisdictio Romani 
Pontincis aut Episcopi obitu non cessat. 

§ 2. Cessat vero cum Episcopus dioecesis vacantis 
possessionem legitime ceperit ad normam can. 334, § 3. 



The jurisdiction of an Apostolic administrator does not 
expire with the death of the Roman Pontiff or the bishop. 
But it ceases as soon as the bishop of a vacant see has 
taken legal possession thereof, according to can. 334, § 3. 

Under § 1 of this canon the canons or consultors of a 
diocese cannot proceed to the election of a vicar-capitular 
or administrator while the bishop whose diocese is ruled 
by an Apostolic administrator, is alive* 



4S. C. EE. et RR., Aug. 4. >578; Jan. 24, 1749 (Birurri, /. e. p. 3'. 

314, a;6). 



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CHAPTER X 
inferior prelates 

Can. 319 

§ 1. Praelati qui praesunt tcrritorio proprio, separato 
ab omni dioecesi, cum clero et populo, dicuntur Abbates 
vd Praelati null ins, ncmpc dioecesis, prout eorum eccle- 
sia dignitate abbatiali vcl simpliciter praelatitia gaudet. 

§ 2. Abbatia vel praelatura nullius, tribus saltern. 
paroeciis non constans, singulari iure regitur. nee eidem 
applicantur quae canones statuunt de abbatiis vel prae- 
laturis nullius. 

Prelates who preside over a territory of their own, be- 
longing to no diocese, inhabited by clergy and people, are 
called abbots or prelates nullius, vis. t of no diocese, ac- 
cording as their church is abbatial or simply prelatial. 

An abbey or prelature nullius, which does not consist 
of at least three parishes, is ruled by special law, and 
the following canons do not apply to it 

It is evident that here the question of exemption would, 
at least partly, enter canonical discussion. However, this 
topic belongs formally to the tract on religious, to which 
we must therefore refer the reader for a fuller exposition. 
Here we will only state, with Benedict XIV, that there 
are three kinds of inferior prelates : 

(1) such as are superiors of religious living within a 
monastery or convent with passive exemption from the 
jurisdiction of the Ordinary; 

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332 ECCLESIASTICAL PERSONS 

(2) such as enjoy active jurisdiction over the clergy 
and people of a certain district within the limits of a 
diocese; and 

(3) prelates with active jurisdiction over clergy and 
people living in a territory which is separated and dis- 
tinguished by proper boundaries from the surrounding 
dioceses. The last-named class of prelates are abbots or 
prelates nullius (dioeceseos), and their right or title is 
acquired by Apostolic privilege or immemorial custom 
which bears all the marks of a juridical proof. 1 The 
Annuario PontiUcio for 1917 enumerates four prelatures, 
eighteen abbeys, and one priory nullius. 2 One of the 
eighteen abbeys is St. Mary's, at Belmont, North Caro- 
lina. The Abbey of Einsiedeln, Switzerland, belongs to 
the class defined in § 2 of our canon, for its active exemp- 
tion and jurisdiction extends only over the territory cir- 
cumscribed by the walls of the monastery and over the 
clergy and people living within that precinct; therefore 
this latter abbey is ruled by special laws. 

Can. 320 

§ 1. Abbates vel Praelati nullius nominantur et in- 
stituuntur a Romano Pontifice, salvo iure electionis aut 
presentation is, si cui legitime competat; quo in casu 
ab eodem Romano Pontifice confirmari aut institui 
debcnt, 

§ 2. Assumendi ad abbatiam vel praelaturam nullius 
iisdem qualitatibus ornati esse debent, quas ius in 
Episcopis requirit. 

Abbots and prelates nullius are nominated and invested 

l Or Syn. Diotc, II, n, a ff. longing to the United Military Or- 

1 Page 183 ff., the priory being den. 
that of Ciudad Real in Spain be- 



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CANON 321 333 

by the Roman Pontiff, with due regard to the right of 
election or presentation lawfully belonging to another per- 
son ; in which latter case they are confirmed or invested 
by the Roman Pontiff. 

Those chosen to govern an abbey or prelature nullius 
must have the same qualifications which the law requires 
for bishops. 

Can. 321 

Si cui collcgio est ius eligendi Abbatem vel Praela- 
tum nullius ad validam electionem requiritur numerus 
8uffragiorum absolute maior, demptis suffragiis nullis, 
firmo pecuiiari iure quod maior em suffragiorum nu- 
mcrum exigat. 

As abbots or prelates nullius are classed with bishops, 
it is evident that the Pope is entitled to nominate them. 
However, the Code does not wish to curtail the acquired 
rights of others, be they physical or moral persons. 
The physical person generally is the patron, e. g., the 
King of Spain concerning Ciudad Real; who presents 
a fit person for the vacant office. The right of election 
belongs to an electoral college, which must proceed accord- 
ing to the rules laid down in can. 160-178. However, if 
the constitutions or statutes of a college or chapter re- 
quire it, the candidate must have two-thirds of the entire 
number of votes. Ori the other hand, any statute or con- 
stitution which admits only a relative majority, would 
now have to be discarded. If, for instance, there are 
forty electors and three candidates, one of whom receives 
twenty, the second eleven, the third nine votes, the elec- 
tion is null and void. As to the qualifications of candi- 
dates, can. 331 must be observed. 1 

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§ 1. Abbas vel Praelatus nullius nequit quovis titulo 
sive per se sive per alios in regimen abbatiae vel prae- 
laturae se ingerere, antequam eiusdem possessionem 
ceperit, ad normam can. 334, § 3. 

§ 2. Abbates vel Praelati nullius qui ex praescripto 
apostolico vel ex propriae religionis constitutionibus 
benedici debent, intra tres menses a receptis litteris 
apostolicis, cessante legitime impedimento, benedic- 
tionem ab Episcopo, quern maluerint, accipiant. 



§ 1 strictly prohibits any interference in the spiritual or 
temporal government of an abbey or prelature nullius by 
the candidate-elect before he has received the Apostolic 
letters confirming his election. But suppose the election 
fell upon the administrator or vicar-capitular, what then ? 
In that case, as Pius IX has decided, 4 a new administrator 
should be chosen by the electoral college. Our Code, 
mitigating the Constitution of Pius IX just quoted, in- 
flicts the penalty of suspension of the right of election ad 
beneplacitum, if the electors allow the candidate elected 
or presented to interfere before he has received the Apos- 
tolic letters notifying him of his appointment. One who 
acts against this law is declared unable to obtain the 
prelacy. 8 But can. 334, § 3 permits an administrator who 
is elected bishop, to continue in the office of administrator. 

As to the blessing of abbots or prelates nullius, the 
Code speaks conditionally, vis., if an Apostolic mandate 
or statute requires the same. Up to a few years ago the 
Cassinese abbots, three 7 of whom are abbots nullius, 

A " Romanus Pontifex." Aug. 28, ft Con. 2394. 

1873. f Those of Monte Cassino, S. 

ft According to the Const, just Paolo Roma, SS. Trinita della Cava 

quote-). excommuni cation sptciali de' Tirreni. 
modo reierved Ml inflicted. 



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were never blessed, because being chosen ad tempus, for 
special reasons, they simply took possession of their 
abbeys after being confirmed. An abbot must be blessed 
by a bishop, not by an abbot. 8 

Can. 323 

3 1. Abbas vel Praelatus nullius easdem potestates 
ordinarias easdcmque obligationes cum iisdem sanc- 
tionibus habet, quae competunt Episcopis residential!- 
bus in propria dioccesL 

§ 2. Si charactere episcopali non sit ornatus et bene- 
dictionem, si earn recipere debet, receperit, praeter alia 
munera quae in can. 294, § 2 describuntur, potest quo- 
que ecclesias et altaria immobilia consecrare. 

§ 3. Quod attinet ad Vicarii Generalis constitu- 
tionem, serventur praescripta can. 366-371. 



As to § 1 we may mention ° that some abbots seem to 
have exempted themselves from the duty of visiting the 
tombs of SS. Peter and Paul at stated times. The Code, 
following the law laid down by Benedict XIV, enjoins on 
abbots and prelates nullius the same obligations which 
are incumbent on residential bishops, including the visitor- 
Ho ad limina* 

§ 2 appears somewhat misleading, because there are two 
conditions in one sentence : if not endowed, and if obliged 
to receive the blessing, as if the blessing were a necessary 
qualification for obtaining the rights mentioned. We be- 
lieve the meaning to be that abbots who are not bishops 
may perform the functions allowed to vicars and prefects 
Apostolic — for these are mentioned in can. 294, §2 — 



8S. Rit. C. March 8, 1617; Bar- »Cfr. Benedict XIV, "Quod 

bosa, Summa Apost. Decis., t. v. sancta," Nov. 23, i~-;o, 55 3. 5, 6; 
"Abbaa," n. 8. "Firmandia," Nov. 6, 1744. 1 1*. 



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but that this does not apply to those abbots who are under 
obligation to receive the blessing and, against the Apos- 
tolic injunction or proper statutes, fail to receive it. As 
a penalty for their disobedience they are deprived of pre- 
rogatives which they would otherwise enjoy, and which 
such abbots as are not bound to receive the blessing enjoy 
unconditionally. 

We may here draw attention to our explanation of can. 
294, § 2, where we said that Apostolic vicars and prefects 
are not entitled to consecrate churches and immovable 
altars. Can, 323, § 2 adds to the privileges enjoyed by 
vicars that of consecrating churches and altars as granted 
to the abbots or prelates nullius, who therefore are more 
privileged than vicars and prefects. 

Can. 324 

Capitulum religiosum abbatiae vel praelaturae 
nullius regitur propriis legibus ac constitutionibus ; 
Capitulum saeculare, iure communi. 

Concerning religious chapters and their constitutions, 
note must be taken of can. 489, which ordains that par- 
ticular constitutions conflicting with the present Code are 
to be looked upon as abrogated. 

Can. 325 

Abbas vel Praelatus nullius, licet charactere episco- 
pal! careat, utitur tamen in proprio territorio insignibus 
pontificalibus cum throno ac baldachino et iure ibidem 
officia divina pontifical! ritu celebrandi ; crucem autem 
pectoralem, annulurn cum gemma, ac pxleolum viola- 
ceum potest etiam extra territorium deferre. 



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CANON 326 337 

Abbots and prelates nuttius, though not consecrated 
bishops, enjoy within their own territory the right of 
wearing the pontifical insignia with throne and canopy, 
and of celebrating pontifical functions ; outside their ter- 
ritory, they may wear the pectoral cross, a ring set with a 
precious stone, and a violet skull-cap. 

The canon limits the pontifical functions of these pre- 
lates to their own territory, outside of which they are not 
allowed to pontificate, unless the Ordinary of the diocese 
grants permissioa 10 

Can. 326 

Si praelatura saecularis Capitulo careat, eligantur 
consultores ad normam can. 423-428. 

Can. 327 



§ z. Abbatia vcl praelatura nullius vacante, si agatur 
de abbatia vel praelatura religiosa, succedit Capitulum 
religiosorum, nisi constitutiones aliud f cram ; si de sae- 
culari, Capitulum canonicorum ; uu unique autem 
Capitulum intra octiduum debet Vicarium Capitularem 
deputare ad normam can. 432 scqq., qui abbatiam vel 
praelaturam regat usque ad novi Abbatis vel Praelati 
electionem. 

§ 2. Abbatia vel praelatura impedita, servetur prae- 
scriptum can. 429. 



During the vacancy of an abbey or a prelature belong- 
ing to religious, the chapter of religious succeeds in the 
government, unless the Constitutions provide otherwise; 
to a vacant secular abbey or prelature, the chapter of 



10 S. Rit. C, Dec. 6, 1631; Bar- "Abbas," n. a8; cfr. can. 137. 

boat, Sumna, Dtc. Ap., s. if. 



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338 ECCLESIASTICAL PERSONS 

canons succeeds; however, both chapters are obliged 
within eight days from date of notice of the vacancy, 
according to can. 432 ff., to elect a vicar-capitular, who 
shall rule the abbey or prelacy until a new abbot or prelate 
is elected. 

If an abbey or prelature is impedita, let canon 429 be 
observed. 

These canons will be treated in their proper places 
further down. 

Can. 328 

Circa Romani Pontificis Familiares, sive praelati 
titulo gaudeant, sive non, standum privileges, regulis 
et traditionibus pontifkiae Domus. 



The term familiares (dependants) of the Roman 
Pontiff excludes the so-called palatinate Cardinals, who 
would otherwise belong to the famUia pontijicia. The 
latter term first included all persons belonging to the 
Papal Court, but towards the end of the fifteenth century 
it came to be a special distinction or honor granted to 
certain persons who stood in a special relation to the 
palatinate clergy. 11 Now the palatinate clergy really 
meant those clerics who served the palatiutn Lateranense, 
or Lateran palace. But in course of times various papal 
officials and tribunals (Rota and Signatura) were de- 
tached from the palatinate clergy and attached to the 
Papal Court. 12 According to the Annuario Pontificio for 
1917 the following belong to the FamUia Pontijicia: two 
Cardinals palatinate, the Maggiordomo, the Maestro di 
Camera, the Vicar-Prefect of the Sacred Apostolic Pal- 
aces, the Auditor of the Pope, the Master of the Sacred 



11 Annuario Pontificio, 1917. P- 1 8 Phillips, K.-R,, 1864, Vol. VI, 

559. 333 ff. 



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Palace, the secret Chamberlains participant es, 1 * the Do- 
mestic Prelates in great number, the secret Chamberlains 
supernumerary, also in great number, the Chamberlains 
with the purple dress (pavonazzo) in and outside of 
Rome, and finally the secret chaplains in and outside 
the City." 

■ 

IB After that would follow the 1* Annuario Ponttficio, i 9 1 7 , p. 

camerieri di spada t cappa, who, 455 ff.; Pius X, " Inter multipiice*," 
however, are all secular persons. Feb. 21, 1905. 



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TITLE VIII 



THE EPISCOPAL POWER AND THOSE WHO PARTAKE 

THEREOF 

After treating of the supreme power in the Church and 
those who stand either in a proximate or a remote relation 
to the Sovereign Pontiff, the Code proceeds to deal with 
the episcopal power and those who partake thereof. The 
whole preceding title considered only prelates immediately 
connected with the Papal Court. This is intelligible, be- 
cause all the ranks of the hierarchic order so far enumer- 
ated, with the exception of the Primacy itself, are of ec- 
clesiastical institution, and, so to speak, ramifications of 
the central power. 

Now a new title starts, treating of an institution which, 
though dependent on the supreme power, exists not by 
mere permission or authority of the Roman Pontiff, but 
by divine right and ordination. 

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THE BISHOPS 

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§ z. Episcopi sunt Apostolorum successorcs atquc ex 
divina institutione peculiaribus ecclcsiis pracficiuntur 
quas cum potcstate ordinaria regunt sub auctoritate 
Romani Pontificis. 

§ 2. Eos libcrc nominat Romanus Pontifex. 

§3. Si cui collegio conccssum sit ius eligcndi Epi- 
scopum, scrvetur praescriptum can. 321. 



After what has been said under cc. 100 and 216, only a 
few remarks remain to be added. 

The names episcopus and sacerdos occur promiscuously 
up to the third century, and even at the time of St. Gre- 
gory the Great, bishops were called consacerdotes, which 
is not surprising, since the bishops are priests in the full- 
ness of the word, who have received the plenitude of the 
priesthood and jurisdiction over a determined territory, 
generally called diocese. Hence bishops were also styled 
dioeccsani. 

Two characteristics distinguish the bishop from the 
simple priest : the fullness of the priesthood and the power 
of jurisdiction in foro cxterno. The former, potestas 
ordinis, consists chiefly in the right of administering the 
Sacraments of Confirmation and Holy Orders and per- 
forming pontifical consecrations and blessings. The 

341 



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342 ECCLESIASTICAL PERSONS 

pot est as iurisdicltonis is ordinary, because ipso facto at- 
tached to the episcopal office, wherefore the bishop is also 
called Ordinarhis (*". e., index) of his diocese. However, 
the episcopal jurisdiction is subject to the power of the 
Sovereign Pontiff, and hence is neither plena nor inde- 
pendent, but limited, first to the diocese (locally) and, 
secondly, in regard to subject-matter (materially), espe- 
cially by reserved cases and limited dispensations, as also 
by co-called causae maiores. 

From this we must conclude : ( i ) that whereas the pote- 
stas ordinis is equal in the bishops and the Pope, the latter 
is superior to the bishops as to the potestos iurisdictionis; 
(2) that bishops are superior to ordinary priests both in 
power, order, and jurisdiction. These conclusions are de 
fide, x The opinion of St. Jerome 2 concerning the equal- 
ity of bishops and priests, and the false views of William 
a Sancto Amore are of purely historical interest' The 
Code merely says that the bishops are by divine right 
placed over single dioceses. This expression appears to 
us not well chosen. For local organizations are not of di- 
vine institution, and therefore single dioceses cannot cor- 
rectly be said to be ruled by the bishops in virtue of a di- 
vine ordinance. The truth is that, by virtue of their epis- 
copal consecration, bishops are radically (aptitudinaliter) 
qualified to rule a diocese assigned to them by the Pope. 
Jurisdiction, of course, no matter how we conceive it to be 
conferred, whether immediately by God through conse- 
cration, or mediately through the Pope, can neither validly 
nor licitly be exercised without a canonical mission, which, 
on account of the monarchical principle of the Church, 



l Vatic., Sew. IV, c. 3: Trid., 2 Comm. in Titum. I: Ef-. ad 

Seas. 23, cap. 4; can. 7 f . (Den- Ocean. 69, 1; co. 146 ad. Evang. 1. 

singer, I. c, on. 1673 ff. nn. B37, 3 Bouix, Dc Farocko, 1855, p. 65 f. 
844 f)- 



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CANON 330 343 

must be imparted by the supreme head. Therefore, also, 
episcopal consecration is, according to modern law, 4 re- 
served to the Pope, who has moreover the exclusive right 
of confirming bishops. 8 

§ 3 of our canon mentions the election of bishops, which 
followed, as we shall see under chapter V (Diocesan 
Chapters), the investiture, which the diocesan chapters, 
with the approval of the Holy See, vindicated to them- 
selves. The Decretals mention this mode of providing 
for a vacant diocese, not as a particular concession of the 
Holy See, but rather as a matter-of-fact and the usual 
thing. 

qualities required in a bishop 

Can. 330 

Antequam quis in Episcopum assumatur, constare 
debet, secundum modum a Sede Apostolica determina- 
tum, cum esse idoneum. 

Can. 331 

§ i. Ut quis idoneus habeatur, debet esse: 

i.° Natus ex legitimo matrimonio, non autem legiti- 
matus etiam per subsequens matrimoniura ; 

2. Annos natus saltern trig in ta ; 

3. A quinquennio saltern in sacro presbyteratus or- 
dine constitutus : 

4. Bonis moribus, pietate, animarum zelo, pru- 

dentia, ceterisque dotibus praeditus, quae ipsum aptum 

3 

4 Schemier. JurUprvd. Eeel. would put at least a tijn of Inters 

Civitis, I. I, tr. 3, c. 1, n. 56a; rogation after the word " restituta," 

Pontificalt Kom., tit. de consec used id the paragraph quoted; even 

elect:, the Decreta.1t speak of election 01 

8 Benedict XIV, "In postremo," aoraething usual and legal; cc, 46, 

Oct. 20, 1756, I 15; but historiaaa 48, 50, 57, X, I, 6 de electione. 



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344 ECCLESIASTICAL PERSONS 

efficiant ad gubernandam dioecesim dc qua agitur ; 

5. Laurea doctoris vel saltern licentia in sacra 
theologia aut iure canonico potitus in athenaeo aliquo 
vel in Institute studiorum a Sancta Sede probatis, vel 
saltern earundem disciplinarum vere peritus; quod si 
ad religionem aliquam pertineat, a suis Superioribus 
maioribus vel similem titulum vel saltern verae peritiae 
testimonium habeat. 

§ 3. Etiam electus, praesentatus vel quoquo modo ab 
illis designatus, qui privilegio a Sancta Sede concesso 
eligendi, praesentandi seu designandi gaudent, debet 
memoratis qualitatibus pollere. 

§ 3. Iudicare num quis idoneus sit, ad Apostolicam 
Sedem unice pertinet. 

Can. 33a 

■a • 

■ 

§ i. Cuilibet ad episcopatum promovendo, etiam 
electo, praesentato vel designato a civili quoquo Gu- 
bernio, necessaria est canonica provisio seu institution 
qua Episcopus vacantis dioecesis constituitur, quaeque 
ab uno Romano Pontifice datur. 

§ a. Ante canonicam institutionem seu provisionem 
candidatus, praeter fidei professionem de qua in can. 
1406-1408, iusiurandum Bdelitatis erga Sanctam Sedem 
edat secundum formulam ab Apostolica Sede probatam. 



No one, says can. 330, shall be appointed a bishop, un- 
less his fitness is proved according to the rules prescribed 
by the Apostolic See. It also mentions the processus in- 
formativus* or investigation into the qualifications of can- 
didates for the episcopal office. This is now conducted 

by the S. C. Consistorialis. For appointments to bishop- 

< 

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CAtfON 332 345 

rics outside of Italy, the Secretary of State gathers the 
necessary documents, makes up what is called the " posi- 
tion " of the case, and then proposes it to the full Congre- 
gation. According to a decree of July 25, 1916, of the 
same Congregation T the names and qualifications of can- 
didates for American sees, after being passed upon by the 
bishops and the metropolitan of the province, must be for- 
warded to the Secretary of State. 

Canon 331 states some of the qualities which are re- 
quired in episcopal candidates over and above those de- 
manded for the priesthood. 

(1) The candidate must be of legitimate birth. Le- 
gitimation by a subsequent marriage is not sufficient 
This is a stricter regulation than was usually admitted by 
authors. 8 It means that at the time the candidate was 
born, his parents must have lived in lawful wedlock. 

(2) The candidate must be thirty years of age and in 
sacred orders or the priesthood. As to age, the old law B 
was not quite determined up to the Decretals, 10 and the 
Tridentine Council did not fix the precise age p but simply 
referred to the canons. 11 And as to the time during 
which one had to be in sacred orders, the Council re- 
quired only six months. The new Code requires fivt 
years. 

(3) The moral qualifications are more detailed in our 
canon than in the Tridentine decrees. 11 

(4) As to scientific equipment, the Code closely fol- 
lows the enactments of Trent, but inserts " vere peritus" 
to determine more definitely the Tridentine decree which 
says that if an academic degree is wanting, "at least the 



t A. Ap. S., ip»6 (VIII), p. 4»o 9 C. 3. dist 77 required 45 yean; 

fT. c Dist. s» only 30 years. 

8 Cfr. Barbosa, D§ Officio H 10 Cc. 7, *S». X. I, 6 dc electionc. 

PottitaU Bp., P. II, a! leg. 1, on. 11 Sesa. 22, cade ref. 

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346 ECCLESIASTICAL PERSONS 

public testimony of an academy should declare the can- 
didate fit to teach others." It is not probable now-a- 
days that, as in the time of Honorius III (1216-1227), a 
bishop should be unable to read the grammar or " Dona- 
tus/' " but the standard of scholarship laid down by the 
Code must be insisted upon. For, as Barbosa says, a 
bishop without learning is like a ship without a rudder, 
a clock without weights, a hen without wings. 14 A 
bishop should be particularly " well versed " in theology 
and canon law because the former governs the court of 
conscience, while the latter is required for the forum 
externum. 

The superiores maiores of a candidate who belongs to 
a religious order or congregation are the Abbot Primate, 
the Abbot President, the Abbot, the Superior General, or 
the Provincial. 15 

The same qualities are required for all candidates for 
episcopal sees, no matter whether they are elected, pre- 
sented, or designated, for the law 18 makes no distinc- 
tion. Nor is there any reason for granting an exemption 
when the public welfare is concerned, since these quali- 
ties are prescribed not merely for the persons, but for 
the office, which is one of great dignity and importance. 
Nothing, says Innocent III, is more offensive to the 
Church of God, than unworthy prelates ruling souls. 17 
The Roman Pontiff alone is competent to judge whether 
or not the qualities described in the papers relating to 
the processus infortnativus are sufficient. Of course, in 
case of necessity or utility the Pontiff may dispense with 
some of the required qualifications. 18 



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13 C. 15, X, I, 14. 18, 44, 53, X, I, 6; Trid., Scat. 24. 

14 Dt Officio et Pot. Efi., P. II, c. 1 de ref. 
alleg. i t n. »5. >*C 44. X, I, 6. 

is Con. 488, 8"; cfr. Trid., Sess. IB lb. and c. 19, X, I, 6; Pius 

- -■. c a de ref. X. Allocutio " Duplicem," Nov. 14, 

i«Cfr. cc. 1, 3, X, 1, 5; cc. 7, 1904. 



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CANON 333 347 

Can. 332 rejects the claim of the so-called regalists 
that the right of presentation includes investiture, and 
that consequently a bishop can enter upon the govern- 
ment of his diocese without papal investiture and docu- 
ments. 10 The contrary is true. Only by ratification on 
the part of the Apostolic See can one become a bishop or 
Ordinary of a diocese. This confirmation is preceded 
by two acts: the profession of faith and the oath of alle- 
giance to the Church. The oath must be taken before 
an Apostolic Delegate, personally and not by proxy. 20 
If the consecration is performed in virtue of Apostolic 
letters, the oath of fidelity or loyalty is taken into the 
hands of the consecrator." This is that M fearful" ( !) 
oath which most probably Pope Gelasius I (492-496) pre- 
scribed for the suburbicarian bishops, and which St. Boni- 
face, the Apostle of Germany, made into the hands of 
Gregory II, which did not, however, prevent him from 
making remonstrances to Pope Zachary. 22 



Can. 333 

Nisi legitimo impedimento prohibeatur, promotus 
ad cpiscopatum, etiamsi S. R. E. sit Cardinalis, debet, 
intra trea menses a receptis apostolicis litteris, conse- 
crationem suscipere, et intra quatuor ad suam dioece- 
sim pergere, salvo praescripto can. 238, § a. 

Unless prevented by a lawful obstacle, one promoted 
to a bishopric, even though he be a cardinal of the Holy 
Roman Church, must within three months after receiv- 
ing the Apostolic letters receive consecration, and within 



it Pius IX, Allocutio, " Nunquara 20 Can. 1406 f. 
fore," l>ec. 15, 1856; Syllabus, n. 21 Pontificate Rom., De Consecr. 
50 (Denzinger, n. 1598); "Rom- Electi in EpUcopum : Forma jura- 
anus Pontifex," Aug. 2%, 1873; cfr. menu'. 

c 18, X, 1, 6; Reg. luris I in 6"; WCjf. Aliog, Manual of Church 

e. 3, Clem. 1, 3. History, i8;6, II, p. 114. 



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348 ECCLESIASTICAL PERSONS 

four months take up residence in his diocese. The car- 
dinal-bishops of the suburbicarian sees are the only ones 
exempted from this rule. The text is based upon an 
old law," and its meaning is evident, with the possible 
exception of the time within which a newly consecrated 
bishop must go to his diocese. For it might be construed 
either that the four months run from the date of conse- 
cration, or that they must be counted from the date 
of having received the Apostolic letters of confirmation. 
In the first case seven months would be granted, in the 
latter only four. We believe that the latter interpreta- 
tion is the correct one, because otherwise the clause 
would have no proper starting point; and hence the 
omission of the terminus a quo in the last clause must 
be supplied from that of the first or, " a receptis litteris" 
This seems still more probable if we consider the omis- 
sion of the word " months " in the last clause. 



duties and rights of bishops 
| Can. 334 

§ i. Episcopi res id en uales sunt ordinarii et inune- 
diati pastores in dioecesibus sibi commissis. 

§ a. In regimen dioecesis neque per se neque per 
alios, nee ullo sub titulo sese ingerere possunt, nisi 
prius eiusdem dioecesis possessionem canonice ceper- 
int; sed si ante suam ad episcopatum designationem 
vicarii capitulares, officiates, oeconomi fuerint renunti- 
ati, haec officia etiam post designationem retinere et 

exercere possunt. 

§ 3. Canonicam dioecesis possessionem capiunt Epis- 
copi residentiales simul ac in ipsa dioecesi vel per se 

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349 



vel per procuratorem apostolicas litteras Capitulo ec- 
clesiae cathedralis ostenderint, praesentc secretario 
Capituli vel cancellario Curiae, qui rem in acta referat. 



Bishops are the judges-in-ordinary of their respective 
districts, because their power accrues to them in virtue 
of the episcopal office, not by mere delegation. What the 
term immediate, taker from the decrees of the Vatican 
Council," means is to be determined by the bishop's de- 
pendence upon the supreme authority of the Church on 
the one hand, and by his independence of any secular or 
clerical power on the other. Pius X complained against 
the illegal procedure of the government of Portugal, which 
tried to separate clergy and people from the centre and 
subject them to its own power. 35 The episcopal power, 
though it may be offered by electors or patrons, is not 
conferred by them, but by the Sovereign Pontiff, and is 
attached to the office. Immediate in the truest sense 
would mean that the episcopal power is the result of 
consecration. But it is hardly probable that the Code 
intends to settle a controversy which has been debated 
for a long time and with an excess of zeal "by canonists." 
Probably the term here only means that, aside from papal 
interposition, no other power on earth shares in the be- 
stowal of episcopal jurisdiction. 

With regard to his inferiors, the bishop of a diocese 
is their free and independent judge, and not responsible 
to them, but subject only to the supreme lawgiver and the 
common law of the Church." 

The next paragraph emphasizes that a bishop elect, 
even after he is confirmed, should not interfere in dio- 



Ut Sea. IV, c. 3 (Denringer, /. C. 
n. 1674). 

211 " Iamdudum," May M, i»ii 
{A. Ap.S., Ill, 117 ff>. 



2«Cf. Benedict XIV, Dt Sy*. 
Diotc, I, 4. •'• 

>T Aiconer. J. c, f us, j, c. 



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3So ECCLESIASTICAL PERSONS 

cesan matters before he has taken canonical possession 
of his see. 28 Stress is here laid, as the quotations of 
Card. Gasparri show, on the Apostolic letters of Pius IX 
against the regalistic tendencies which tried to subvert the 
organization of the Church in favor of civil govern- 
ments. 29 But the old law already opposed such encroach- 
ment. 80 

Our canon permits a candidate elected and confirmed 
to a bishopric to continue in the office of administrator 
or official (can. 1573), if he held these offices before his 
appointment to the episcopate. As bishop elect, how- 
ever, he cannot accept any such office. 

The act of taking juridical (not liturgical) possession 
of a see is performed in the chapter (in capitulo). In 
our country this means that the consultors, who take 
the place of the chapter as far as this forms the senate 
of the bishop, 81 must meet to hear or inspect the papal 
document. The chancellor of the diocese, who acted as 
such under the preceding bishop, must be present, in order 
to make a record of the proceeding. 



p 



Can. 335 

§ 1. Ius ipsis et officium est gubernandi dioecesim 
turn in spiritualibus turn in temporalibus cum potes- 
tate legislativa, iudiciaria, coactiva ad normarn sacro- 
rum canonum exercenda. 

§ 2. Leges episcopales statirn a promulgatione obli- 
gare incipiunt, nisi aliud in ipsis caveatur ; modus au- 
tem promulgations ab ipsomet Episcopo determinatur. 



28 See can. 321. 80 Cc. 9, 17. aj. X. I, 6; c. 5. 

2B"Nunquam fore," Dec. 15, 6°, I, 6; c. i, Extrav. Comra. I, 3. 

1856; Syllabus, n. 50; " Roman ui ai Can. 427. 
Pontifex," Au*. 28, 187J. 

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CANON 336 351 

j 

Can. 336 

§ z. Observantiam legum ecclesiasticarum Episcopi 
urgcant; nee in iure communi dispensare possunt, nisi 
ad norm am can. 81. 

§ 2. Advigilent nc abusus in ecclesiasticam discipli- 
nam irrepant, praesertim cira administrationem Sacra- 
mentorum et Sacramentalium, cultum Dei et Sanc- 
torum, praedicationem verbi Dei, sacras indulgentias 
implementum piarum voluntatum; curentque ut puri- 
tas fidei ac morum in clero et populo conservetur, ut 
fidelibus, praecipue pueris ac rudibus, pabulum doc- 
trinae christianae praebeatur, ut in scholis puerorum ac 
iuvenum institutio secundum catholicae religionis prin- , 
cipia tradatur. 

§ 3. Circa praedicationis munus, servetur praescri- 
ptum can. 1327. 



About these two canons many pages might be written. 
The new Code has rendered a great service to the bishops 
as well as to canonists, as the former have in it a guide- 
book through the labyrinth of canon law, while the lat- 
ter are allowed to refer to the respective canons. Yet 
some observations will not be superfluous. 

(1) The bishops, in virtue of their office, enjoy 
legislative power within the limits of the common law, 
from which, however, they may dispense under certain 
conditions. These conditions are laid down in canon 81, 
which says that a bishop cannot dispense even in indi- 
vidual cases unless this power has been given to him either 
explicitly (by a faculty), or implicitly in virtue of a 
special office connected with that of Ordinary. Implic- 
itly may also mean that the law itself grants the power 
of dispensation in certain cases. And, indeed, our Code 



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fflictc iti r\fl/Mili**r cir/niT^ctflnfiQc 89 



352 ECCLESIASTICAL PERSONS 

St 

mentions several instances in which Ordinaries may grant 
dispensations which would otherwise be beyond their 
power. Thus they may dispense from examinations those 
who are distinguished in theological science 8S ; they may 
dispense from occult irregularities," from the banns of 
marriage/* from impediments of ecclesiastical law in 
certain cases, 80 and from fasting and the observation of 
feasts in peculiar circumstances. 1 

But, as noticed under can. 81, there is another category 
of cases in which bishops may dispense, vis.: if the three 
conditions mentioned there occur. Hence if the law, on 
the one hand, is sufficiently explicit as to the power of 
dispensation, it is also strict in limiting the use of that 
power. 

Here let us state that, without solid reasons, Ordi- 
naries cannot validly dispense in common law. Laxity 
in that regard would subvert ecclesiastical discipline, en- 
danger the hierarchy, and invite schism, such as the 
pseudo-council of Pistoja tried to bring about. 58 

In what, then, does the legislative power of the bishops 
consist? Being the guardians, not the authors, of the 
common law of the Church, they have to watch over its 
enforcement." They may furthermore make new de- 
crees in matters which the common law has overlooked 
or left undetermined, for in that case an episcopal decree 
is not against, but beyond the law. Thus, for instance, 
the common law i0 ordains in a general way that children 






ta Can. 459, f 3. 190 ff.), nl which we shall treat in 

81 Can. 990. on Appendix. 

M Cm. 1028. «8 Pius VI, " Auctorem fidei, 

•6 Can. 1043, X045. nn. 7, 74 (Deminger. /. c. 



*9 



• - *-B U . ''MJl !*--«:. ««. f t r<J v .-'^,.-W. SI .-i, .. .., 



88 Can. 114$. 1370, 1437). 

•T Can. 85. The S. C Com. 8fi Benedict XIV, Dc Sy*. Diotc, 

(Apr. *5, 1918) haa abolished cer- XII, ptwrim. 

tain facultiH {Acta Ap. Sidii, X, 40 Rituale Rom., tit. 9. 



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CANON 336 353 

should be brought to church for baptism as soon as pos- 
sible. Here the bishop may determine the precise time. 
He may also determine more accurately the common law 
rules concerning clerical dress and conduct. He may 
abolish customs contrary to the common law and proper 
to his diocese only ; although, as Benedict XIV says, he 
should be cautious in abrogating long standing traditions 
tolerated by the Church. 41 However, a bishop would 
exceed his power were he to demand of ordinandi the so- 
called five-year pledge under threat of refusing them 
Holy Orders. For such an ordinance would be tanta- 
mount to establishing an irregularity, which bishops can- 
not do." 

(2) The judiciary power of the Ordinary extends to 
all ecclesiastical matters brought before his court, which 
are not specially reserved to the Holy See. Reserved 
are all causae maiores, as noted above/ 8 as well as the 
foundation of religious communities and the approbation 
of their constitutions. 44 Otherwise bishops are judges- 
in-ordinary of the first instance, and therefore every 
bishop must establish a diocesan court and finish cases 
brought before him within the time prescribed by law. 41 
Besides, at canonical visitations he may issue enactments 
and rules for correction, from which appeal can be made 
only in devolutivo. 46 Lastly, they may reserve cases to 
themselves, but only a few, at most four. 4T 

The place where a bishop can exercise his judiciary 
power, in cases of contentious jurisdiction, is his whole 

4lBened. XIV, /. c, XII, 7. 4! **Can. 49a. 

XI, cc. xoff.; XI, ©c 1-3. 48 Can. 363 f.j can. 1709. 

4S This 11 the opinion of a Roman •• Benedict XIV, "Ad milltan- 

canonist whom we consulted about da," March 30, I?4?i can. 345. 

tha matter. 47 Can. 697. 

4* Can. aio. 



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354 ECCLESIASTICAL PERSONS 

■ 

diocese (barring places exempted) ; whilst extra-judicial 
or voluntary jurisdiction may be exercised even outside 
the diocese. 48 

(3) The coercive power of a bishop consists in inflict- 
ing ecclesiastical penalties on such as are contumaciously 
delinquent and recalcitrant. Here especially the censures 
are to be noted. They are either established by law or 
directly inflicted by the Ordinary. The Code admonishes 
bishops to be moderate and very circumspect in wielding 
this power. 49 To inflict canonical penalties without 
weighty reasons would diminish episcopal authority and 
provoke contempt of the bishop. 50 Temporal punish- 
ments, especially fines, forfeiture of revenues, etc., unless 
permitted by law, should be sparingly used. 

(4) Regarding the administrative power of a bishop, 
he is the dispenser and steward of all the church prop- 
erty within his jurisdiction, i. e., so far as not exempt by 
law, and as such must watch over the diocese. 51 Here 
we deem it well to call attention to the late decree of the 
S. C. Council, which says that bishops should not hold 
church property in fee simple, but have it acknowledged 
by the State as vested in parish corporations or a cor- 
poration sole, to be administered by the bishop with the 
cooperation of trustees and the diocesan consultors." 
The bishop is furthermore entitled and obliged to demand 
an account of priests or administrators, and to see to it 
that testaments are properly executed. 88 

As to civil laws, note that some States of our Union 
restrict the amount of property that a church or religious 
society may hold, and the use to which it is put, whereas 

a 

«fl Cfr. c. 7, 6", I, 16; can. 201. M Can. 1519. 

«Cin. 8341. 02 July 29, 191 1 {Am. Eccl. Rev., 

MTrid.. Sms. as. c. 3 de ref.; Vol. 4S, 586). 

Benedict XIV, Dt Syn. Diotc., r, 53 Can. 1520 ff; Trid., Sew. n, 

5» 3- cc. 9, 11 de ref.; can. 151$. 



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CANON 336 355 

other States have no restrictions. Nearly all States, how- 
ever, have some statutory laws, which must be observed 
as far as they do not conflict with ecclesiastical laws." 
A deed of land to the bishop for a church in fee simple 
creates a trust, and on the death of the bishop, the title 
passes to his successor." As to cemeteries, the civil laws 
generally acknowledge ecclesiastical jurisdiction. 00 

As regards the exactions the bishop is entitled to make, 
see can. 1504-1507. 

(5) The bishop's ius vigilantiae, according to canon 
336, is exercised by watching that no abuses creep into : 

(a) The administration of the Sacraments and Sacra- 
mentals, which should take place according to the Rituale 
Romanian. No diocesan ritual should be used, unless it 
has the special approbation of the Holy See (S. Rit. C). 
Bishops may approve editions of Roman liturgical books, 
if they are in strict concordance with the original text. 
Their approval is simply testifying to the correctness of 
the reprint. Bishops may also approve and publish a 
diocesan calendar with feasts prescribed for the uni- 
versal church or for their diocese especially. Besides, 
they may set the hour of divine service more precisely, 
For the rest the third book contains explicit instructions. 

(b) The divine worship and the veneration of saints 
might be endangered by tolerating devotions not approved 
by the Church, or by the exhibition of strange images 
and unusual representations, drawing an aureole around 
the head of one not yet beatified or canonized, etc." 
The bishops might, at times, profitably say a word about 
pictures, sculptures, and architectural designs. 



04 Scanlan, The Lav of Churxh BO Scanlan, □. 287. 

and Grave, 190Q, n. 304; C. ZoU- Ott Ibid., n. 454- 

mann, American Civil Church Law, 07 Trid., Sew. 25, de invoc., ven- 



1917. erat., etc 



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356 ECCLESIASTICAL PERSONS 

(c) As to indulgences, see the rules laid down in can. 

(d) Concerning the purity of faith and morals, the 
rules on the censorship of books are of special impor- 
tance. 68 Of course, bishops are not infallible judges in 
matters of faith and morals and cannot singly define arti- 
cles of faith, and therefore they should abstain from en- 
deavoring to settle dogmatical controversies which the 
Church has not yet decided. 58 

(e) About schools, the Code gives some important 
rules in can. 1375 ff., and it is not necessary to repeat the 
injunctions of popes and councils touching that matter- 
Leo XIII in the beginning of his pontificate,* addressed 
all the bishops of the Church, saying: "Your duty, 
Venerable Brethren, is to take every care that the seed 
of celestial doctrine be sown throughout the field of the 
Lord, in order that the minds of the faithful may be 
deeply imbued with the Catholic truths and firmly rooted 
and preserved from error." He went on to urge upon the 
bishops the necessity of giving a solid Catholic training 
to the young. 

(f) As to preaching, the new Code merely reiterates 
the old precept that bishops must preach the word of 
God and also see to it that the pastors do their duty 
in this important matter.' 



« 



pontifical functions 
Can. 337 
§ 1. Episcopus in tota dioecesi, ne exceptis quidem 

UCu. 13840. «t II Tim. 4. a; Acts 6, a; Bese- 

m Benedict XIV, D$ Syn. Diote., diet XV, " Humani generii," June 

VII, ii, J. *5i i9*7i cfr. can. 13*7. 
•0 " Inacrutabili," April ai, 1878. 



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CANON 337 357 

locis exempt is, potest pontificalia exercere; non vcro 
extra dioecesim sine expresso vel saltern rationabiliter 
praesumpto consensu Ordinarii loci, et, si agatur de 
ecclesia exempta, de consensu Superioris religiosi. 

§ 2. Exercere pontificalia in iure est sacras functiones 
peragere quae ex legibus liturgicis requirunt insignia 
pontificalia, idest baculum et mitram. 

§3. Episcopus, liccntiam concedens pontificalia ex- 
ercendi in suo territorio, potest quoque permittere 
usum throni cum baldachino. 



" That a bishop may perform pontifical functions which 
. require the use of the pastoral staff and mitre, even in 
the exempt churches of his diocese, has been decided by 
several congregations. Thus the S. C. EE. et RR. an- 
swered on July io, 1603, that a bishop may employ cen- 
sures if regulars refuse him that right/ 2 Outside his 
diocese, however, a bishop needs the consent of the re- 
spective Ordinary. This consent may reasonably be pre- 
sumed if the Ordinary is absent and has never objected 
to outside bishops pontificating in his diocese. However, 
if the church belongs to exempt religious outside his own 
diocese the consent must be expressed, because in that 
case the Ordinary 08 has no power to give his consent, 
and the religious superior is not supposed to permit a 
stranger to exercise pontifical functions, in order not to 
establish a precedent. 

Pontifical functions, says the Code, are such as require 
the use of the pastoral staff and mitre, hence, the con- 
ferring of Holy Orders (even minor), Confirmation, 



•s Bar boss, Summa DecU. A post., that of the religious superior, al- 

t. v. " Baldachin urn." though M et " (and) would not ex- 

•lW« scarcely believe that the elude that interpretation; but the 

Code intends to enjoin two con- consent of the religious superior 

tents: that of the Ordinary and too may reasonably be presumed. 



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358 ECCLESIASTICAL PERSONS 

blessing abbots, consecrating virgins,** consecrating 
chrism, sacred vessels, blessing sacred vestments, etc. 
Mitre and staff always go together and are things related 
to one another in the bishop's use, except, of course, in 
Masses de requiem.* 6 

residence 
Can. 338 



§ x. Etiamsi Episcopi Coadiutorem habeant, tenen- 
tur lege personalis in dioecesi residentiae. 

§ a. Praeterquam causa visitationis Sacrorum Limi- 
num, Conciliorum, quibus interesse debent, vel civilis 
officii suis ecclesiis legitime adiuncti, abesse possunt 
aequa de causa non ultra duos vel ad summum tres 
menses intra annum, sive continuos sive intermissos, 
dummodo cautum sit ne ex ipsorum absentia dioecesis 
quidquam detrimenti capiat : quod tamen tempus con- 
iungi nequit sive cum tempore sibi concesso occasione 
suae promotionis, vel visitationis Sacrorum Liminum, 
vel assistentiae Concilio, sive cum tempore vacationum 
anni subsequentis. 

§ 3. Ab ecclesia cathedrali ne absint tempore Ad- 
ventus et Quadragesimae, diebus Nativitatis, Resur- 
rectionis Domini, Pentecostes et Corporis Christi, nisi 
ex gravi et urgenti causa. 

§ 4. Si ultra sex menses e dioecesi illegitime abfu- 
erint, Episcopum Mctropolita. ad nor mam can. 274, n. 
4, Metropolitam antiquior Suffraganeus residens Sedi 
Apostolicae denuntiet 



eiThe phrase "La consacta," «s Cf. Benedict XIV. "Ad eu- 

which frequently occurs in the re- iientiam," Feb. 15, 1753, fi8; 

gesta S. C. EE. et RR. means the Caeremoniate Episcoforum, I, c. 

solemn blessing nf nuns (moniales) 17. nn- 4. 8. 
with solemn vows. 



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CANON 338 359 

This canon deals with the important duty of residence, 
by which is understood not only material presence 
in the place of office, but also personal discharge of 
the duties involved. For offices are indeed attached to 
places, as the Council of Chalcedon (c. 6) enacted, but 
they are also generally conferred with regard to personal 
qualities (de industria personae). Hence this obligation 
may truly be said to have its foundation in divine law, 
although it is modified and further determined by ecclesi- 
astical law. 

The place where the bishop must reside is his dio- 
cese, but not necessarily the cathedral church. His 
presence in the latter is required only at certain times 
mentioned in § 3. In this point the old law 00 agrees 
with the new Code. 

The law of residence obliges all residential bishops, as 
well as Cardinals who govern a diocese, with the excep- 
tion of the six cardinal bishops of the suburbicarian 
sees. 67 

We may add that, according to canonists, residence in 
the diocese means attending to business, not merely look- 
ing on. 

§ 2 allows a three months' vacation, as granted by the 
Tridentine Council. 08 This period does not include the ca- 
nonical visit to the tombs of SS. Peter and Paul (a mere 
pleasure trip, even a pilgrimage, cannot be called a visi- 
tatio ad litnina) nor the time spent at a council at which 
attendance is of obligation. (A friendly visit to a 
provincial or plenary council at which a bishop is not 
obliged to be present, because not belonging to that prov- 

eaC. 19 ff. c. asf.. C. 7. a. t: XIV. "Ad un%vtrsa$, u Sept s. 



"■ 



<*« ^. 19 a, c as ■•• v.. 7, v. ■• 
C 9. X, III, 4; Trid., Sew. 6, c 
1 1 Ses*. 23, c. 1 de ref.; Richter, *t Can. 238. 



1746. 

Trid., pp. 33 ff-I P- *7« ff-I Benedict 68 L. e 

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360 ECCLESIASTICAL PERSONS 

ince or country, could not be reckoned off). Lastly, — 
and this is intended mainly for countries (e.g., Austria) 
in which the bishops are ex officio deputies to parliamen- 
tary assemblies — bishops are allowed to deduct from the 
three months allowed them for vacation the time they 
are in duty bound to spend outside their dioceses to at- 
tend parliamentary sessions. Foreseeing, however, hu- 
man frailty and astuteness, or perhaps also good faith 
wrongly applied, the Code forbids any arbitrary inter- 
pretation as to the three months' period by stating that 
no combination or putting together is allowed, because 
that would protract a bishop's absence from his diocese. 

No mention is made of lawful absence because of a 
civil office, for in that case circumstances are not at the 
command of the bishop. 

Note that a vacation may not be prolonged by taking 
the last three months (Oct-Dec.) of one year and the 
first three months (Jan. -March) of the following year 
and staying away six months in succession. All these 
questions were proposed to the S. Congregation under 
Urban VIII and solved as stated in the Code. 68 

§ 3 describes the feasts on which bishops must be at 
their cathedral, for they are pastors whose voice the faith- 
ful hear more willingly. From this duty they are excused 
only by an urgent and solid reason, such a one, says 
Benedict XIV, as will stand the test before the tribunal 
of the great Judge. 70 

§ 4 ordains that, if a bishop is unlawfully absent from 
his diocese for more than six months, the metropolitan 
must report him to the Holy See, and if he is himself a 
metropolitan, this duty devolves on the senior suffragan. 

•0 Benedict XIV, "Ad uni- 70" Ubi primum," Dec. 3. <74°* 

vtnat," 8 Cum vero. I 4. 



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Reasons which would excuse such absence are, according 
to the Council of Trent : " 

(a) Christian charily, for instance, preaching to infi- 
dels and heretics, or a lecture which cannot well be post- 
poned; spiritual or bodily help to confreres and people in 
time of distress or calamity, such as war, earthquakes, 
etc 

(b) Urgent necessity, relating to his own person, for 
instance, persecution, ill-will of the people, or personal 
infirmity requiring a change of climate; however, the 
danger of contracting disease in times of epidemics and 
perils common to pastors and flock does not excuse the 
bishop from keeping residence; 73 

(c) Obedience to superiors, for instance, a call to 
Rome or to the Metropolitan, perhaps for a special meet- 
ing, trial, canonization, etc To this class belong the 
visitatio ad limina and assistance at councils, as expressly 
stated in the Code ; 

(d) Evident utility of Church or State, for instance, as 
peacemakers, as extraordinary envoys or counsellors, as 
strike settlers, etc. However, if time permits, it is ad- 
visable to inform the metropolitan or the Apostolic See. 7 ' 

Reports concerning the non-observance of the law of 
residence are to be made to S. C. Consistorialis. 1 * 

missa pro populo 
Can. 339 

§ t. Debent quoque, post captam sedis possessionem, 
omni exiguitatis redituum excusatione aut alia quavis 

Ti Trid.. Sess. 33, c. 3; Sesu. 24, versae." 
c u; Benedict XTV, * Ad uni- TS Wern*. /. r., II. p. 557*. P- 5^4 

vtrsar." ed. 1; cfr. can. 465; *t6&> a*75- 

T« Benedict XIV, "Ad uni* « Can. 24$, 83- 



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exceptione remota, omnibus dominicis aliisque festis 
diebus de praecepto, etiam suppressis, Missam 
populo sibi commisso applicare. 

§ 2. In festo Nativitatis Domini, ct si quod festuni 
de praecepto in diem dominicam incidat, satis est ut 
Missam unam pro populo applicent. 

§ 3. Si festum ita transferatur ut in die ad quern non 
solum fiat officium cum Missa festi translati, sed ser- 
ventur quoque obligationes audiendi Missam et absti- 
nendi a servilibus t Missa pro populo applicanda est 
in die ad quern; secus in die a quo. 

§ 4. Episcopus Missam pro populo diebus supra in- 
dicatis per se ipse applicare debet ; si ab eius celebra- 
tione legitime impediatur, statis diebus applicet per 
alium ; si neque id praestare possit, quamprimum vel 
per se ipse vel per alium applicet alia die. 

§ s. Licet Episcopus duas vel plures dioeceses aeque 
principaliter unitas regat aut, praeter propriam dioece- 
sim, aliam vel alias in administrationem habeat, obli- 

D 

gationi tamen satisfacit per celebrationem et applica- 
tionem unius Missae pro universo populo sibi com- 
misso. 

§ 6. Episcopus, qui obligationi de qua in supcriori- 
bus paragraphia, non satisfecerit, quam citius pro 
populo tot applicet Missas, quot omisit. 



The first of these paragraphs is taken almost verbally 
from the Apostolic letter of Leo XIII, "In suprema," 
June 10, 1882, where the Pontiff says that one of the 
duties of a pastor is to pray and offer sacrifice for his 
flock, and that this obligation, considered in general and 
not as to fixed days, is based on the divine law. The 
Code with the S. C. Concilii, insisting upon the Tridentine 



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CANON 339 363 

decrees," authentically explains and extends this rule to 
all bishops and cardinals who govern a diocese, and to 
abbots and prelates nullius. 

The days on which a bishop has to say Mass pro populo 
are Sundays, holydays of obligation celebrated in foro 
et choro, and such suppressed feastdays as are now cele- 
brated only in choro. The feastdays in foro et choro, or 
holydays of obligation, are: New Year's Day, Ascension, 
Assumption of the Blessed Virgin, All Saints, Immaculate 
Conception, and Christmas (First Mass). 7 ® The sup- 
pressed feasts are : Epiphany, Purification," St. Matthias, 
St. Joseph (March 19), Annunciation B. M. V., Monday 
and Tuesday after Easter, Monday and Tuesday after 
Pentecost, SS. Philip and James, Finding of the Holy 
Cross, Corpus Christi, St. John Baptist, SS. Peter and 
Paul, St. James, Nativity of the Blessed Virgin, St. Mat- 
thew, St. Michael (Sept 29), SS. Simon and Jude, St. 
Andrew, St. Thomas, St. Stephen Protomartyr, St. John 
Evangelist, Holy Innocents, Pope St. Sylvester (Dec. 

31)." 

The rest of the canon needs no explanation, with the 

exception perhaps of two phrases. 'Si ab eius celcbra- 
tionc legitime impediatur" (§4) does not mean that a 
bishop is unable to say Mass at all, but that he is not able 
to apply his Mass ; for instance, he may have to say a 
Mass for a special intention, a funeral Mass, or a missa 
pro sponso et spotusa, or perhaps he has a plngue stipen- 
dium for that day and no other. All these and simi- 
lar reasons are considered lawful, provided a bishop com- 
plies with the rest of the canon. — " Aeque principaliter 



ts Sew. 33, cc. x, 4 dc ref. of the Purification may be trans- 

7» Cfr. can. 1247, 83. f erred. 

TT Not Candlemas* day, because 78 The compiler of the St. Louis 

the blessing of candles always takes Ordo, 1918, has wisely inserted this 

place on Feb. 2, whereas the feast list (p. 22). 



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364 ECCLESIASTICAL PERSONS 

unitae " are two dioceses which have been combined, but 
so that both remain intact and none is subject to the 

other. 78 

reports to the holy see 
Can. 340 

§ 1. Omnes Episcopi tenentur singulis quinquenniis 
relationcm Summo Pontinci facere super statu dioe- 
cesis sibi commissae secundum formulam ab Apo- 
stoiica Sede datam. 

§ 2. Quinquennia sunt fixa et communia, atque com- 
putantur a die Ianuarii 191 1 ; in primo quinqucnnii anno 
relationem exhibere debent Episcopi Italiac, insularum 
Corsicae, Sardiniae, Siciliae, Melitae, et aliarum mino- 
rum adiacentium; in altero, Episcopi Hispaniae, Portu- 
galliae, Galliae, Belgii. Hollandiae, Angliae, Scotiae et 
Hiberniae, cum insulis adiacentibus ; in tertio, ceteri 
Europae Episcopi, cum insulis adiacentibus; in quarto, 
Episcopi totius Americae et insularum adiacentium; 
in quinto, Episcopi Africae, Asiae, Australiae et insula- 
rum his orbis partibus adiacentium. 

§ 3. Si annus pro exhibenda relatione assignatus inci- 
derit ex toto vel ex parte in primum biennium ab inito 
dioecesis regimine, Episcopus pro ea vice a conficienda 
et exhibenda relatione abstinere potest. 

On the last day of December, 1909, the S. C. Consisto- 
rialis issued a decree (" A remotisshna") regulating the 
visitatio ad limina and the reports to be made in connec- 
tion therewith. Canon 340 relates only to the latter. 8 ** 
It is a new law, in so far as the report is to some extent 
detached from the visitatio, and in regard to details. 

T9 Can. 1419, 30. bo A. Ap. $*, U, p. ij if. 



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CANON 340 365 

What the canon means by " communia" (general) ap- 
pears from the contrary ; i. e. t the dates fixed oblige all 
the bishops comprised under a certain year, so that no 
exception or further specification is required. The year 
for our American bishops commenced on the first of 
January, 1914, and ended the last day of December, 1914, 
so that the next year in which they will have to make 
a report is 1919; then 1924, etc. 

§ 3 says if a bishop has been governing his diocese 
only for two years when his turn comes for making his 
report to the Holy See, he may omit it. The reason is 
evident. A new bishop is hardly able to know the state 
of his diocese, especially if he has not yet visited all por- 
tions of it. 

The decree of S. C Consist, prescribes that the quin- 
quennial report be made in Latin. The " Ordo servan- 
dus in Relatione de Statu Ecclesiarum " (fifteen chapters 
with 150 points) specifies what the report must contain, 
viz.: a survey of the material and spiritual state of the 
diocese, comprising the clergy, religious and pious insti- 
tutes, and the faithful at large." 



v1sitatio ad limina 
Can. 341 

§ i. Omnes et singuli Episcopi eo anno quo rela- 
tionem exhibere tenentur, ad Urbem, Beatorum Apo- 
stolorum Petri et Pauli sepulcra veneraturi, accedant et 
Romano Pontifici se sistant. 

§ 2. Sed Episcopis qui extra Europam sunt, permit- 
titur ut alternis quinquenniis, idest singulis decenniis, 
Urbem petant. 

»i A. A p. s., n, 17 ff. 



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Can. 342 

Episcopus debet praedictae obligationi satisfacere 
per sc vel per Coadiutorem, si quern habeat, aut, ex 
iustis causis a Sancta Sede probandis, per idoneum 
sacerdotem qui in eiusdem Episcopi dioecesi resideat 



The tombs of the princes of the Apostles were from the 
earliest times visited by the faithful and their pastors 
as a sign of veneration for the two founders of the Roman 
Church, Cajus, a presbyter of Rome, told the heretic 
Proculus: " I can show you the trophies of the Apos- 
tles." Two epitaphs testify to the custom of sacred visita- 
tion, notably that of Abercius, bishop of Hieropolis in 
^-Phrygia, who came to Rome to venerate the tombs of the 
Apostles towards the end of the second century. 8 * Of 
course, the Italian bishops, who were immediately sub- 
ject to the Bishop of Rome as their metropolitan, were 
more numerous and regular in making these visits. But 
it is also true that missionary bishops were sometimes 
summoned to Rome, whence they had received their mis- 
sion. Since Paschal II (1099-1118) the metropolitans 
had to promise at the reception of the pallium to visit 
the sacra limina at stated intervals. 88 Later on all the 
bishops who were either directly or indirectly consecrated 
by the Pope had to comply with this obligation. 8 * A 
more uniform discipline was ushered in when Sixtus V, 
in his Constitution " Romanus Pontifex," Dec. 20, 1585, 
ruled that all patriarchs, primates, metropolitans, and 
bishops should present themselves at regular intervals 
before the Roman Pontiff, to give counsel and make sug- 
gestions conducive to the betterment of ecclesiastical 

02 Armellin!, Letioni di Arch** »3 C 4, X. I, 6. 

olooi* Cru/iona, 1898, p. go f; p. 84 C. 13, X. I, 33; C. 4. X. II. 

235. M. 



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CANON 343 367 

conditions. Benedict XIV directed also the prelates and 
abbots nullius to make the ad limina visit. 85 He permit- 
ted bishops who were lawfully prevented from making 
the visit personally, to send a representative, — either a 
secular or regular dignitary, or a priest in good standing. 
This representative must report the reason why the bishop 
cannot come. Titular bishops are not obliged to make the 
visit, because the text binds only those who have to 
make a report. 

In Rome, the bishops, after visiting the two churches of 
St. Peter (Vatican) and St. Paul (Via Ostiense), must 
present themselves in the sacristies of the two basilicas 
and inscribe their names in a book kept for that purpose. 

The relatio status must be handed in at the Apostolic 
Chancery (Via Vittore Emmanuele) to the S. C. Congre- 
gatio Consistoralis. 

During their visit," the bishops must also present 
themselves to the Sovereign Pontiff, in order to pay their 
respects to the Vicar of Christ and, as stated above, to 
offer their counsels if asked for. 

diocesan visitations 
Can. 343 

§ 1. Ad sanam et orthodoxam doctrinam conservan- 
dam, bonos mores tuendos, pravos corrigendos, pacem, 
innocentiam, pietatem et disciplinam in populo et clero 
promovendam ceteraque pro ratione adiunctorum ad 
bonum religionis constituenda, tenentur Episcopi ob- 
ligation visitandae quotannis dioecesis vcl ex toto vel 



■"■ 



85 " Quod sancta," Nov. 2$, 1744. that the S. C. Consist would now 

«• The Irish bishops, by indult admit that privilege, although can. 

of the S. C Cone, May ao, ifiji, 60 does not declare it null ud 

have to make the visit only every void. 

tea years* but we scarcely believe 



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368 ECCLESIASTICAL PERSONS 

ex parte, ita ut saltern singulis quinquenniis universam 
vel ipsi per se vel, si fuerint Legitime impediti, per 

Vicarium Generalem aliumvc lustrent. 

§ 2. Fas est Episcopo clericos duos etiam a Capitulo 
si vc cathedral! sive collegiali sibi adsciscere visitationis 
comites atque adiutores ; eosque, quos maluerit, cligcre, 
reprobato quocunquc contrario privilegio vel consue- 
tudine. 

§ 3. Si obligations de qua in § 1, Episcopus graviter 
defuerit, servetur praescriptum can. 274, nn. 4, 5. 

Can. 344 

§ 1. Ordinariae episcopali visitationi obnoxiae sunt 

personae, res ac loca pia, quamvis exempts, quae intra 
dioecesis ambitum continentur, nisi probari possit spe- 
cialem a visitatione exemptionem fuisse ipsis ab Apo- 
stolica Sede concessam. 

§ 2. Religiosos autem exemptos Episcopus visitare 
potest in casibus tantum in iure expressis. 

Can. 345 

Visitator, in sis quae obiectum et finem visitationis 
respiciunt, debet paterna forma procedere, et ab eius 
praeceptis ac decretis datur recursus in devolutivo tan- 
tum ; in aliis vero causis, etiam tempore visitationis, 
Episcopus ad normam iuris procedat necesse est. 

Can. 346 

Studeant Episcopi debita cum diligentia, sine inutili- 
bus tamen moris, pastoralem visitationem absolverc: 
caveant, ne superfluis sumptibus cuiquam graves one- 
rosive sint, neve ratione visitationis ipsi aut quisquam 
suorum pro se suisve dona quodvis genus petant aut 



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CANON 346 369 

accipiant, rcprobata qua vis contrana consuctudine ; 
circa vero victualia sibi suisque ministranda vel pro- 
curationes et cxpensas itincris, servetur legitima loco- 
rum consuetude. 



From the Codex Canonum Ecclesiae Africanae we 
learn that at the beginning of the fifth century synods 
ruled that prelates should visit their privinces annually. 87 
A council of Tarragona, 516, commanded the bishops 
on the occasion of this visit to see especially to the repairs 
of the churches. 88 In the Frankish Kingdom, especially 
under Charles the Great, the bishops were accompanied 
by a count (comes) as protector and aid, who took cog- 
nizance of and decided cases of a more or less civil 
nature. 89 A decretal of Innocent IV (1252) forbids 
avaricious exactions, allowing the necessary victuals but 
no gifts or donations of any kind. 00 These rules were 
renewed by the Council of Trent, from which our text 
is almost verbally taken.* 1 

(1) The episcopal visitation must be made by the 
bishop personally, unless he is prevented by a legitimate 
obstacle, e. g., sickness, or duties of an urgent nature, in 
which latter case the visit may be entrusted to the vicar- 
general or some other trustworthy priest. 

(2) The whole diocese must be visited within the 
space of five years, which is a modification of the Triden- 
tine law. 

(3) Not more than two companions are allowed, who 
may be taken from the number of canons, although these 
might remonstrate against the exercise of this right of 



87 Nn. 53. 73, 94t Mami, Coll., »e Regino of Prfim, Dt Syno- 

III, 743» 775» 799- dalibut Cousis. I II., c. a ff. 

as Cf r. c. 10 I., C. 10, q. i; (To- »0C, i, | 5, 6% III, *o. 

ledo synod, 633. cc 35 f-). 01 Se««. *4. c. 3 de ref. 



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370 ECCLESIASTICAL PERSONS 

the bishop ; M and the Code reprobates any contrary privi- 
lege or custom. 

(4) The persons, things, and places subject to the dio- 
cesan visitation are: 

(a) The whole secular clergy of the diocese, also 
cathedral and collegiate chapters, in all matters spiritual 
and temporal. 08 The laity, too, may, if the Ordinary 
judges it expedient, be examined about things pertaining 
to faith and morals, the administration of the Sacra- 
ments and the care of the church property. The church 
trustees in particular are liable to be questioned. 

All religious, not exempt, of both sexes, are amenable 
to the canonical visit; and also exempt religious who are 
pastors of souls, in all matters concerning their pastoral 
conduct." 

(b) The places which should and may be visited are 
the cathedral church, the parish churches, and public and 
semi-public oratories not in possession of or administered 
by exempt religious. Oratories which, though incor- 
porated into an exempt religious body, are served by a 
secular priest, are subject to visitation. 90 

The Bishop may also visit any parish church held and 
administered by exempt religious, and inspect the bap- 
tismal font, the confessionals of the pastor and his as- 
sistants and the altar of the Blessed Sacrament. 90 He 
may visit the meeting places or chapels or confraternities 
or sodalities of lay persons, even though they are erected 
in churches belonging to exempt religious ; HT also hos- 



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92 Richter, Trid., p. 155, nn. 34, 90 S. C. Cone, April 5, 1631, 

3S, 37. 38- Curiensi; June 23, 172$ (Richter, 

91 Trid., Scsa. 6, c. 4 de icf. /. c, n. 6). 

(Richter, /. c, p. 30). 97 Trid., Sess. 7, c. 7 dc ref.; 

94 Can. 631, I 1. S. C. Cone, Sept. 30, 1730 (Richter, 

ob Trid., Sesa. 7, c. 8 de ref. I. c, p. 53. n- ">>• 

(Richter, /. c. p. 53, n. 3). 



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CANON 346 371 

pitals and orphanages and schools whicn are maintained, 
even by exempt religious, as parish or elementary schools. 

High schools and colleges conducted by exempt reli- 
gious are liable to canonical visitation by the Ordinary 
only concerning their religious and moral training. 98 

Cemeteries common to the faithful and exempt reli- 
gious are subject to episcopal visitation, whilst cemeteries 
exclusively reserved to exempt religious are not. 89 

(c) The things which the bishop should examine and 
inspect must be determined by the purpose of the can- 
onical visit, as outlined in the first clause of canon 343, 
§ 1, and mentioned in the Pontificate Romanum.* The 
second point : " That he may know how the church is 
administered spiritually and temporally," offers an op- 
portunity to investigate: 

(a) Whether the Blessed Sacrament is properly kept 
and in the right place ; whether there is a sanctuary lamp ; 
whether pyxis, monstrance, lunula, etc., are of the pre- 
scribed material, kept clean and free from verdigris, 
whether the sacred species are changed with sufficient 
frequency, etc. 

(/3) Whether the altars are made according to rubrics, 
and if images or statues are erected upon them, whether 
these are in conformity with the mind of the Church and 
in good taste, and especially whether any extraordinary 
images or representations disapproved by the Church are 
exposed for veneration. 

(y) Whether the baptismal font is properly and con- 
veniently kept and the holy oils can be easily found and 
are preserved in a decent place. 

(8) In the sacristy he should observe the neatness and 

88 Leo XIII, " Romanos Pontv t» Leo XIII, ibid, 

fiat," May 6, 1881; can. 1382. 1 Pars III: Ordo ad Vistiandu 

Parochial. 



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372 ECCLESIASTICAL PERSONS 

color of the sacred vestments, the chalices and other 
sacred vessels. 

(*) The confessionals should be examined as to their 
grates, and also with regard to veils, stole and surplice, 
where these are prescribed, etc. 2 

We come now to what the Code says about exempt 
religious* 

(i) Note that exemption from canonical, or rather 
episcopal, visitation is now comprised under the general 
concession of exemption, as has been more than once de- 
cided by the S. R. Rota, 4 but is valid only if granted by a 
special concession of the Apostolic See, as canon 344, § 1 
clearly emphasizes. Wherefore no cotnmunieatio privi- 
legiorum may be invoked by exempt religious as to the 
canonical visitation. 

(2) However, as far as the exempt religious them- 
selves are concerned, the bishop is entitled to visit them 
only in cases expressly stated in the law. These cases, 
as far as the diocesan visitation is concerned, were partly 
mentioned above. They are : 

(a) The parish churches administered by exempt reli- 
gious, including the Blessed Sacrament, the altar, the tab- 
ernacle, the baptismal font and holy oils, the confession- 
als, the pulpit, the sacristy, the belfry with the bells be- 
longing to the parish, the cemetery, etc. 6 

(b) The oratories or chapels of confraternities whose 
members are lay or secular persons, even though adminis- 
tered by exempt religious; 



P 



sCf. IWbosa, De Officio et Po- Gregory XV, " Inserutabili;" Leo 

testate Episcopi, P. HI, allcg. 73. XIIF, " Romanos Pontifiees," May 

nn. 63 ff. 8, if Si. 

> Cfr. can. 615 f. 5 " Firmandis," 87. 

* Harboaa, /, c, n. 6; Benedict c " Inserutabili; " Richter, I. A» 

XIV, "Ad miliianth," March 30, p. 53, n. 10. 
1773; " Firmandis," Not. 6, 1744; 



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o> 
a 

(c) The schools conducted by exempt religious, except 
the secondary schools, which are subject to visitation only 
as far as religious and moral education is concerned; 1 

(d) Divine worship, that it be carried out according 
to the sacred canons, and no superstitious practices 
tolerated, even in the churches and oratories of exempt 
religious. 8 

Canon 345 lays down the modes of procedure when 
correction of abuses becomes necessary. There are two 
such modes, the paternal and the judiciary. The former 
consists in secretly admonishing the delinquent. This 
may be employed towards the clergy as well as the faith- 
ful. But it would not be paternal to threaten penalties in 
order to compel one to reveal crimes or transgressions, 9 
or to make a public admonition serve as a preliminary 
to criminal procedure. 10 

Much less in keeping with the bishop's office as a 
father would be the infliction of ecclesiastical censures. 
Penances which have no judiciary character, e.g., a re- 
treat, would not exceed paternal correction. If the bishop 
proceeds paternally, no appeal is allowed, because no 
sentence has been given; but recourse is permitted in 
devolutivo ; that is to say, the correction must be accepted 
and the injunctions carried out, until the superior judge 
reverses the sentence. 

Metropolitans should not accept any recourse against 
a bishop's paternal procedure as long as the latter has 
remained within the limits prescribed by law. 11 

What are the aliae causae mentioned in canon 345? 

We presume them to be such as do not fall directly under 

- 

T Can. 138a. 11 Trid., Seas. 13, c 1 de ref.; 

8 Can. 1261. .Richtcr, J. ft, p. 71, d. 1 f.; Bene- 

• Barbosa, /. c, P. Ill, alle*. 73. diet XIV, "Ad miUtantis.' March 

n. 29. 30, 1742, || 6, 10, 19, ji. 
10 Can. ajoj. 



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374 ECCLESIASTICAL PERSONS 

the objects of an episcopal visitation, especially those 
which require a formal trial, e. g., the removal of a 
parish priest, the procedure against pastors refusing to 
comply with the law of residence, although a mere pre- 
cept concerning that point would not exceed the paternal 
method ; l2 lastly, all criminal cases requiring trials. 

Can. 346 repeats the old and oft inculcated duty not 
to make the episcopal visitation disagreeable for those 
concerned, and more especially establishes the remunera- 
tion allowed by law. 13 The Code permits the procura- 
tiones and expenses of the journey. By procurations 
are understood food and lodging. No prescription is ad- 
missible against this lawful claim of the visiting bishop. 14 
However, those who would have to furnish the procura- 
tiones may pay their equivalent in money. 15 With the ex- 
ception of this support, and the expenses of the journey, 
neither the bishop nor his companions are allowed to 
demand or accept any gifts or donations. 

It has been decided by the S. C. Concilii that nuns 
(tnoniales), who have no regular ecclesiastical benefice, 
are not obliged to offer the procurations to the visiting 
bishop. 1 * However, as the Code says, custom may in 
that case admit the acceptance of a decent support. But 
on the other hand the canons as well as legal decisions 1T 
admonish the bishop not to be too exacting. Now-a-days 
there is not so much danger of excesses in this as there 
used to be. 

lzBarbosa, /. c, n. 37. JO S. C. Cone. Not. 13. 163% 

lflC. 16, X, r, 31; c. aj, X, III, (Richter, Trid., p. 333. n. 9). 

30: cc 1 U 6*. Ill, 30; Trid., 17 Ricbter. I. c. p. 335. n. 17; 

Sess. 24, c. de ref. this decision obliges: the bishop to 

i*C. 16, X, II, 26 de praescript. restitution. 

15 Barbosc, 1. c., n. 56. 



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precedence 
Can. 347 

In suo territorio Episcopus praecedit omnibus 
Archiepiscopis ct Episcopis, exceptis Cardinalibus, Le- 
gatis Pontificiis et proprio Metropolita; extra terri- 
torium serventur normae traditae in can. 106. 

titular bishops 
Can. 348 

§ 1. Episcopi titularcs nullara possunt cxerccrc po- 
testatern in sua dioecesi, cuius nee possessionem ca- 
piunt. 

§ 2. Decet ex caritate, citra tamen obligationem, ut 
aliquando Missae sacrificium pro sua dioecesi appli- 
cant. 

episcopal privileges 

Can. 349 

§ x. Ab accept a authentica notitia peractae canon icae 
provision-is, Episcopi siv* residentiales sive titulares: 

i.° Praeter alia privilegia quae suis in titulis recen" 
sentur, fruuntur privilegiis de quibus in can. 239, § ., 
nn. 7-12; nee non n. 2, etiam quod spectat ad casus 
Ordinario loci reservatos; n. 3, cum consensu saltern 
praesumpto Ordinarii loci ; n. 4, dummodo non tenean- 
tur celeb-rare in cathedrali; nn. 5, 6, ritibus tamen ab 
Ecclesia praescriptis ; 

2. Ius habent deferendi insignia episcopalia ad nor- 
mam legum liturgicarum. 

§ 2. A capta vero possessione Episcopi residentiales 
habent praeterea ius: 



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1." Pcrcipicndi reditus mensae episcopalis; 

2. Concedendi indulgentias quinquaginta dierum in 
suae iurisdictionis locis ; 

3. Elevandi in omnibus ecclesiis suae dioecesis 
thronum cum baldachino. 



Can. 349 enumerates some of the privileges and rights 
of bishops. The following they hold in common with 
cardinals: the right of a portable altar, 18 the right to 
celebrate Mass on board of vessels, the right of applying 
the indulgences of a personally privileged altar, the right 
to gain indulgences in their private chapels, and the right 
to bless the people everywhere. As to the celebration of 
Mass on board a vessel the conditions are : that the sea 
be calm and the ship not rolling, that it be far from the 
coast and another priest or deacon be present to hold the 
chalice in case of great agitation of the ship. 18 

As to the privileges mentioned under n. 2, canon 239, 
§ 1, the confessor chosen by the Ordinary for himself and 
his dependents may also absolve from cases which the 
same Ordinary has reserved to himself; and with regard 
to n. 3, concerning preaching in a strange diocese, the 
consent of the Ordinary must at least be presumed, 1. e. t 
it must be probable from common indications that he is 
not unwilling to grant it, or known that he never refused 
his consent before when asked for it. As to n. 4, Christ- 
mas would be concerned and also Holy Thursday ; but on 
the latter day the bishops generally bless the holy oils. 
On Christmas day, according to can. 338, § 3, they should 
not be absent from their cathedrals, but this docs not 
exclude the use of the privilege about the masses; at 
least a bishop may celebrate two masses or have them 



ItS, R. C, June 8, 1896. 19 Cfr. Gopfcrt, Moral-Tktologit, 



1898, III, 138. 



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celebrated in his private chapel. About nn. 5 and 6, the 
bishops must follow the ritual in blessing devotional 
articles and erecting stations of the cross. 

The episcopal insignia are: the mitre, the crosier or 
pastoral staff, the pectoral cross, the pontifical ring, 
dalmatics and tunicella, gloves and sandals. 30 Leo XIII 
added the skullcap of violet color for all." The crosier 
is certainly the oldest and most significant episcopal orna- 
ment, in use since the fifth century, whilst the mitre 
( taenia = a priestly band ) only dates to the tenth cen- 
tury, but is mentioned in several papal letters and in the 
decretals." Besides, the residential bishop's name must 
be mentioned in the canon. 

A residential bishop, from the day that he takes pos- 
session of his diocese, enjoys the reditus mensae episco- 
palis™ which means the income of the bishopric of which 
he is the sole administrator. This income comprises the 
salary proper, the cathedraticum, the procurations, the 
synodicum, etc., or whatever belongs to him as chief 
pastor of the diocese, of whose table he is to live." The 
bishop has the right of erecting a throne with a bal- 
dachino or canopy over it in every church of the diocese, 25 
even those of exempt religious. 



20 Cf. c. 15, X, III. 1: c. 7. x. 1, 
8; cf. JafW, Reg Pontf., ed. 2, :88a. 
where since the 10th century many 
privileges occur to that effect. 

21" Praeclarc," Feb., i388. 

22 Cf. Can. Bncycl,, under the 
various catchwords; Smith-Chelt- 
ham, Dictionary of Christian An- 
tiquities, $. v. " Mitre," " Staff." 

21 Mtnta r pit r o f-al is occurs since 



the isth century; and in the sense 
of property or support, since the 
9th century; see Du Cange, Glot- 
sariun. s, v, " Mensa." 

24 I Cor. io f ax; cfr. Barbosa, 
I. c, P. Ill, alleg. 95, n. 67: Mar- 
tin V, ■ Inter ennctas " (Denzin- 
ger. Enchiridion, n. 504). 

2B Barbosa, Summa Decis. Apost., 
e. v. " Baldachinum." 



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CHAPTER II 

COADJUTORS AND AUXILIARY BISHOPS 



1. Bishops had helpers in the discharge of their pas- 
toral duties as early as the third and fourth centuries. 
Thus St. Augustine is said to have been the coadjutor 
of Valerius. This custom, humane as it is, 1 had conse- 
quences against which the law had to guard, especially 
that two bishops should rule one and the same diocese. 
Therefore resort was had to the expedient of constituting 
a visitator or quasi administrator. For various reasons, 
especially to prevent a troubled election and to preserve 
episcopal sees against the invasion of territorial usurpers, 
it was often found necessary to appoint a coadjutor for a 
bishop yet living and active, whose see the coadjutor 
should occupy after the death of the incumbent. This 
practice was acknowledged by the Popes, who reserved 
the right of granting such coadjutors. 1 

2. In the Orient as well as in the Occident there was a 
species of bishops called chorepiscopi (country bishops), 
who were consecrated and exercised episcopal functions 
often to the detriment of the diocese. 8 At the end of 
the fourth century the chorepiscopi were supplanted by 
visitators. In the Occident, especially in France, " coun- 
try bishops," whose jurisdiction often appears doubtful, 

l According to tfae saying: " af- 35, c, 7 de ref.; Benedict XIV, Dt 

flicto afflictio non est addenda," c. Synod. Diocc, 13, 10, is ff. 
3, c 7, q. 1; c. 5. X, III, 6. * Cf. Cone. Encye,, c. 13; SorUc, 

a C, un. 6", III, 5; Trii., Seas, c. 6; Laodic., c 57. 

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became more generally known in the eighth century, and 
in the following century incurred the censure of Pseudo- 
Isidor, whose influence dealt a deadly blow to the institu- 
tion. 

3. A last kind of quasi-bishops were those who owed 
their canonical position to the invasion of the Saracens, 
especially in Spain and the Orient, where many episcopal 
sees and cities were seized by the Islamic hordes and the 
bishops driven away. These exiled bishops sought refuge 
with other bishops, who often employed them in the dis- 
charge of diocesan functions. In Germany such refu- 
gees were commonly known as episcopi titulares, annu~ 
lares, tiHllatenses, auxiliares, suffraganei, vicarii in 
pontificalibus. Their appointment was reserved 4 to 
the Holy See by Gement V. Furthermore it must be 
remembered that after the later crusades many bishops, 
though not resident at their sees, were ordained to 
bishoprics retained by schismatics or infidels ; such 
bishops were called " episcopi in partibus infidelium." B 

The Code distinguishes two kinds of coadjutors, vis.: 
coadjutors proper and auxiliaries. A coadjutor proper 
may be given to the see or to the bishop personally. 
However, we must confess that we have not so far read 
in any author of a coadjutor given to a see, unless he be 
identified with the coadjutor cum iure successionis. 



Can. 350 

§ z. Unius Romani Pontificis est Episcopo Coadiu- 
torem constituere. 

§ 2. Coadiutor dari solet personae Episcopi cum iure 
successionis ; sed nonnunquam datur quoque sedi. 

4C. 5, Clem. I, 3. partibus"; Aichner, /. c, | 124; 

6 Since 1882 called simply "in v. Scherer, K.-R., I, p. 597. 



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§ 3. Coadiutor, datus pcrsonae Episcopi sine hire 
successionis, special! nomine dicitur Auxiliaris. 

The principle laid down in § 1 was formulated by 
Boniface VIII and adopted by the Tridentinc Council, 8 
which also allowed coadjutors to abbots. Benedict XIV 
granted the bishops of Ireland the right to ask for a co- 
adjutor if by reason of advanced age or infirmity they 
were unable to comply with the law of residence. 7 
However, circumstances like those arising at Cologne * 
and elsewhere in the thirties of the last century might 
prompt the idea of giving a coadjutor to the see, not to 
the person of the bishop, especially if he is in the hands 
of the enemies of the Church. A coadjutor is supposed 
to be given to a see only in case it becomes vacant; be- 
cause the contrary assumption that two bishops can 
hold one and the same see at the same time, would be 
uncanonical; one must be titular of another see, other- 
wise the connubium spirituole would be jeopardized. 



E 

rights of coadjutors 
Can. 351 

§ 1. Iura Coadiutoris dati personae Episcopi desu- 
mantur ex litteris apostolicis, quibus constituitur. 

§ 2. Nisi aliud in his litteris caveat ur, Coadiutor qui 
datur Episcopo prorsus inhabili, habet omnia iura ac 
officia episcopalia; ceteri tantum possunt quantum 
Episcopus eisdem commiserit. 

§ 3. Quae Coadiutor potest et vult exercere, Episco- 
pus habitualiter alii ne deleget. 

• C. um. 6", III, 5; Trid., Sen. e Brick, Gttch. ,!. kath. Kircht in 

as, c 7 de rcf. Deutjchland im XIX. Jakrh., 1889, 

x"Grm* M " Aut. 15, 174'. 18. II, 371. 



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§ 4. Coadiutor, iusto impedimento non detentus, de- 
bet, quoties fuerit a Coadiuto requisitus, pontificalia et 
alias functiones obire, ad quas Episcopus ipse tenere- 
tur. 

Can. 352 

Coadiutor sedi datus potest in territorio ea quae sunt 
ordinis episcopalis exercere, except a sacra ordinatione; 
aliis in rebus tantum potest* quantum eidem a Sancta 
Sede vel ab Episcopo fuerit commissum. 

These two canons state the powers of coadjutors. 
These powers depend first on the Apostolic letters of ap- 
pointment, and secondly on the condition of the bishop in 
need of assistance. If the latter is able to perform his 
episcopal duties, his will must be respected. On the 
other hand, it would be unnatural and, as it were, offen- 
sive to the Holy See, if a bishop having a coadjutor 
would call in another bishop to perform pontifical func- 
tions which his coadjutor is able and willing to perform. 

A bishop cannot punish or repeal acts which his co- 
adjutor has lawfully performed. 8 

A coadjutor, unless permitted to do so by virtue of the 
Apostolic letters or the consent of his bishop, should not 
use the pastoral staff, because this is the special sign of 
jurisdiction; but he may bless the people, like the bishop. 10 

Can. 353 

§ 1. Quilibet Coadiutor, ut canonicam sui officii pos- 
sessionem capiat, necesse est litteras apostolicas osten- 
dat Episcopo. 

§ a. Coadiutor cum futura successione et Coadiutor 

t S. C. Cone., Feb. 18, !'•:.■; 10 Barbosa, Summa Dteis. Apost, 

Wera*, /. c. § H, p. 1009 (ed. 1.). *. r. "Coadjutor," nn. 3, 10. 



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382 ECCLESIASTICAL PERSONS 

sedi datus debent praeterea easdem ostendere Capi- 
tulo ad normam can. 334, § 3. 

§ 3. Si Episcopus eum in sta turn incident ut elicicndi 
actus human! sit impos, praetermisso pracscripto § i, 
solum praescriptum § 2 ab omnibus Coadiutoribus 
scrvctur. 



This canon appears to confirm the general teaching of 
canonists u that a coadjutor with the right of succession, 
who is ordinarily elected by a chapter, is given by the 
Roman Pontiff only upon the previous consent of that 
chapter. But the Code in canon 350, § 1, is silent about 
that consent, and in the U. S. it is of little practical 
value. However, in our country, too, a bishop coadjutor 
with the right of succession must present his papers of 
appointment to the assembled consultors, who take the 
place of the chapter. 12 To the bishop the coadjutor must 
show the Apostolic letters only if the former is mentally 
and physically able to perform human acts, — in other 
words, as long as he realizes the meaning of the ceremony. 



residence 
Can. 354 

Coadiutor quilibet obligatione tcnetur, sicut Episco- 
pus, residendi in dioecesi, e qua, extra tempus vaca- 
tionum, ad normam can. 338, ipsi non licet, nisi ad breve 
tempus, Coadiuto permittente, discedere. 

What is meant by " a short time " may be deduced 
from can. 405, § 5 f ., where mention is made of a shorter 

11 Benedict XIV, Da Syn. Diotc , ia Can. 427. 

XI11, c. 10, n. 24. 



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CANON 355 383 

time than a week in connection with residence. Hence, 
in round terms, we may say, about six days. 

Can. 355 

§ 1. Coadiutor cum iure succession is, vacante sede 
episcopali, statim evadit Ordinarius dioecesis, pro qua 
fuerat constitutes, dummodo possessionem legitime 
ceperit, ad normam can. 353, §§ 2, 3. 

§ 2. Cum Episcopi munere exspirat Auxiliaris offi- 
cium, nisi aliud in litteris apostolicis caveatur. 

§ 3. Si Coadiutor datus fuerit sedi, eius officium 
etiam sede vacante perdurat. 

This canon states how a coadjutorship is ended; viz.: 

(1) If the episcopal see becomes vacant the coadjutor 
appointed for that diocese becomes Ordinary of the same 
immediately after taking canonical possession thereof; 

(2) With the office of the bishop that of the auxiliary 
also expires, unless provided otherwise in the Apostolic 
letters; (3) If the coadjutor was given to the see, his 
office continues during the vacancy of the diocese. 



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CHAPTER III 

DIOCESAN SYNODS 

The first diocesan synod, or gathering of the clergy 
of a diocese of which we have knowledge, was held by 
Pope Siricius about 387 in Rome. 1 The holding of synods 
became customary in the Eternal City, and Innocent III 
was wont to convoke a synod twice or three times a week. 
These synods were, however, rather forerunners of the 
consistory, to which foreign bishops were admitted. In 
the Frankish kingdom diocesan synods were not infre- 
quent in the sixth century, to judge from the seventh 
canon of the synod of Auxerre, a. d. 578, which set up the 
rule that in the middle of May all the priests, and on the 
first of November all the abbots should meet annually in 
the episcopal city. 2 These synods turned out to be mixed 
meetings in which both ecclesiastical and civil matters 
were debated. The fourth Lateran Council (1215) 
ordered synods to be held annually to promulgate the 
decrees of provincial councils to the clergy. 1 The same 
decree, with the addition of disciplinary injunctions con- 
cerning profession of faith and the appointment of 
synodal judges and examiners, was adopted by the Coun- 
cil of Trent* The pseudo-council of Pistoja, 1786, 

1 Benedict XIV, .'»«• Syn. Dioie., provincial council than a diocesan 

I. x, 6. The Council of Alexin- synod. 

dri», 320/331, mentioned by Wernx t Hefele, J. C„ III, 38 f. 

(II, 1096) was attended by nearly ■ C. a$, X, V, 1. 

100 bishopi (Hefele, Conc.-Gesch., < Sess. 34, c. a; 15, c. a; 34, C, 

It 3*5). which sounds more tike a 18 de ref. 



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CANON 356 385 

adopted certain false propositions concerning the im- 
portance and authority of synods and the power of parish 
priests, which were condemned by the Church. 5 

Can. 356 

§ 1. In singulis dioecesibus celebranda est decimo 
saltern quoque anno dioecesana Synodus, in qua de its 
tantum agendum quae ad particulates cleri populique 
dioecesis necessitates vel militates rcferuntur. 

§ 2, Si Episcopus plures dioeceses aeque principali- 
ter unitas regat, aut unara habeat in titulum, alteram 
aliasve in perpetuam administrationem, potest unam 
tantum dioecesanam Synodum ex omnibus dioecesi- 
bus convocare. 

Can. 357 

§ 1. Synodum dioecesanam convocat eique praeest 
Episcopus, non autem Vicarius Generalis sine mandato 
speciali nee Vicarius Capitularis. 

§ 2. Celebranda est in ecclesia cathedrali, nisi aliud 
rationabilis causa suadeat. 

The date from which the ten years are to be reckoned 
is not explicitly stated. However, since the Code went 
into effect in 1918, it appears reasonable to take this year 
as the starting-point. As it is very probable that a 
plenary council will be held in this country in the near 
future, if conditions permit, diocesan synods could be 
conveniently held soon thereafter and repeated every ten 
years. Most probably further instructions will be issued 
by the Holy See on this ^oint. 

The matter or subjects to be treated at the diocesan 



B Pins VI, " Anctorem fidti," Aug. s8, 1794, nn. p-11. 



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386 ECCLESIASTICAL PERSONS 

St 

a 

synod are the needs and welfare of clergy and people. 
They are outlined in the classic work of Benedict XIV 
on the diocesan synod. He mentions: 

(i) Public prayers, allocutions, and sermons; 

(2) The decrees to be read and the profession of faith 
to be pronounced (according to the formula given in *he 
Code) ; 

(3) The election of synodal judges and examiners and 
the appointment of diocesan officials; 

(4) The cases to be reserved (now no more than three 
or four) for atrocious crimes; 

(5) The cadiedraticum, taxes, stole fees, etc., to be 
determined ; 

(6) The alms for mass-stipends and abuses concern- 
ing them ; 

(7) Rendering of an account for the diocesan 
seminary. 

We might add pastoral conferences, the administration 
of church property, and, above all, the inculcation of the 
new Code. 

B 

As to § 2 of canon 356, observe that the S. C. Cone, 
formerly allowed two synods to be held for each of 
several dioceses aeque principaliter united (e.g., Viterbo- 
Toscanella ) J Benedict XIV, however, wished that only 
one synod be held for such dioceses (e. g. t Giovinozzo- 
Terlizzi, now Molfetta in Apulia), but alternately in the 
one and the other ; 8 which is not excluded by the Code. 

Can. 357 states the authority that convokes a synod is 
the bishop who has been confirmed by Rome and taken 
possession of the diocese, even though he be not yet 
consecrated. If he be a metropolitan he may convoke a 

9 L. V, Dt Syn. Diotc. B "*Unigen\t*s," Nov. a6, 1749, 

7 Jan. ix, 1789 (Kichter, Trid., p. 1 9;^' Syn. Uicee, I, 5, 3 f. 
35. n. 6). 



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CANON 358 387 

synod before the reception of the pallium.' We say 
that he must have taken possession of the diocese, on 
account of can. 334, § 2, which rules that before that 
act he is not allowed to take a hand in the government of 
the diocese. The name of Ordinary in this case includes 
Apostolic administrators, Apostolic vicars, abbots and 
prelates nuUius, 10 but not vicars-general without a special 
commission, nor vicars-capitular, who are entirely ex- 
cluded because they can have no mandate." 

As to the place, it is becoming that the cathedral 
church, as * the mother and head of the other 
churches," " be chosen for the synod, although any good 
reason may suffice for choosing another. Such reasons 
would be repairs in the cathedral church or the holding 
of a retreat for the clergy. 

Can. 358 



§ x. Ad Synodum vocandi sunt ad eamque venire de- 
bent : 
i.° Vicarius Generalis; 

a.° Canonici ecclesiae cathedral is aut consul to res di- 

oecesani; 

■ 

3. Rector Seminarii dioecesani saltern maioris; 

4. Vicarii foranei; 

5. Deputatus uniuscuiusque collegia! is ecclesiae a 
Capitulo eiusdem ecclesiae e gremio eligendus ; 

6.° Parochi civitatis in qua Sy nodus celebratur; 

7. Unus saltern parochus ex unoquoque vicariatu 
foraneo eligendus ab omnibus qui curam animarum 

t Benedict XIV, Dt Sy*. Dioec, 10 Benedict XIV, D* Syn. Diotc. 

II. 5; Wernz, /. c., II, p. 1099, who II. ee 10 f. 



"■ 



remarks that the metropolitan ii not 11 Benedict XIV, /. c, c. 8. 

allowed to wear the pallium at his it Ibid., I, 5, 6. 

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388 ECCLESIASTICAL PERSONS 

a 

actu inibi habeant ; parochus autcm elcctus debet pro 
tempore absentiae vicarium substitutum sibi sufficere 
ad normam can. 465, § 4; 

8.° Abbates de regimine et unus e Superioribus 
cuiusque religionis clericalis qui in dioecesi commo- 
rentur, designatus a Superiore provincial!, nisi domus 
provincialis sit in dioecesi et Superior provincialis in- 
teresse ipse maluerit. 

§ a. Episcopus, si opportunum iudicaverit, potest ad 
Synodum vocare alios quoque et etiam omnes canoni- 
cos, parochos, Superiorcs religiosos, imo et singulos 
suae dioecesis saeculares sacerdotes, iis tatnen cxceptis 
qui neccssarii sunt ne in paroeciis animarum cura desit ; 
invitati autem ius suffragii in omnibus habent, perinde 
ac ceteri, nisi Episcopus in invitatione aliud expresse 
caverit. 



Can. 359 



§ 1. lis qui ad Synodum venire debent, si legitimo 
impedimento detineantur, non licet mittere procurato- 
rem qui corum nomine Synodo intersit ; sed Episcopum 
de impedimento certiorem faciant. 

§ 2. Negligentes Episcopus potest iustis poenis com- 
pellere et punire, nisi de religiosis exemptis agatur qui 
parochi non sunt. 



The text of the two canons is explicit enough, but one 
point has surprised us somewhat. It is n. 8 about the 
abbates regiminis. For the Council of Trent," strongly 
defended by Benedict XIV in his work De Synodo 
Dioecesana, 14 and again upheld by Leo XIII, " Romanos 
Pontifices," had established that only those abbots have 

II Sew. 14. c a de ref. i« Lib. Ill, c. i. 



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o 

to attend the synod who either exercise the care of souls 
as pastors of a parish, or whose monasteries are not 
united with a congregation and subject to a general chap- 
ter. Hence, since the Benedictines form congregations 
and celebrate general chapters, it would follow that the 
bishop had no right to call their abbots to the diocesan 
synod. But the Code subjects all governing abbots 
to the episcopal call. On the other hand the new law 
does insist less vigorously on the attendance of exempt 
religious exercising the care of souls, whom the old law 
strictly obliged to attend. Perhaps the Code wants the 
abbots to take the place of their subjects. 

In order to make the invitation and will of the bishop 
more efficacious, canon 359, § 2, gives the Ordinary the 
right to proceed against recalcitrants with ecclesiastical 
penalties. These comprise, besides the privation of 
active and passive suffrage, excommunication and other 
punishments to be inflicted at the good pleasure of the 
bishop. 10 This procedure affects governing abbots and 
exempt religious only if they are actual pastors of 
parishes. 

Can. 360 

§ 1. Episcopus, si id ipsi expedire videatur, oppor- 
tune ante Synodum tempore, unam vel plures e clero 
civitatis et dioecesis commissiones nominet, seu coetus 
virorum qui res in Synodo tractandas parent. 

§ 2. Ante Synodi sessiones Episcopus omnibus qui 
convocati sunt et convenerunt, decretorum schema 
tradendum curet. 



Can. 361 

Propositae quaestiones omnes, praesidente vel per 

15 S. C. Cone, Nov. 19, 1604; Benedict XIV, /. c. III, 1, 10. 



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390 ECCLESIASTICAL PERSONS 

se vel per alium Episcopo, liberae adstantium discep- 
tationi in sessionibus praeparatoriis subiiciantur. 

Can. 362 
Unicus est in Synodo legislator Episcopus, ceteris 
votum tan turn consult ivum habentibus ; unus ipse sub- 
scribe synodalibus co n stit ut io n ibus ; quae, si in Synodo 
promulgentur, eo ipso obligare incipiunt, nisi aliud ex- 

presse caveatur. 

■ 

Since the bishop is the sole ruler of the diocese, and 
alone endowed with legislative power in foro extenio, 
it is evident that all synodal decrees made in conformity 
with the common law of the Church need no approbation 
or signature on the part of the diocesan consultors, or the 
synodal judges, or the rest of the clergy. The clergy, 
both secular and regular, must, however, carry out the 
decrees made at a synod. Any other theory would per- 
vert the true idea of hierarchic jurisdiction. 18 At the 
same time it may be well to call attention to Benedict 
XIV's rule that nothing should be enacted in a synod 
which would be detrimental to the privileges of exempt 
religious, because these are granted by the Supreme 
Pontiff." 

16 Benedict XIV, Dt Syn. Diotc, " Auctortm fidgi," Auf. j8, 1794, 

XIII. CC. I ff . mi. 9 ff. 

uiWd.,. IX, c. 15; Pitw VI, 



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CHAPTER IV 

THE DIOCESAN COURT 

A reproduction, on a smaller scale, of the Roman Curia 
is the diocesan court, whose importance grows in propor- 
tion to the extent of the territory and the number of the 
faithful in the diocese. 

Can. 363 

§ 1. Curia dioecesana constat illis personis quae 
Episcopo aliive qui, loco Episcopi. dioecesim regit, 
opem praestant in regimine totius dioecesis. 

§2. Quare ad earn pertinent Vicarius Generalis, 
officialis, cancellarius, promoter iustitiae, defensor 
vinculi, synodales indices et examinatores, parochi 
consultores, auditores, notarii, cursores et apparitores. 

The diocesan court, then, consists of those persons who 
assist the bishop or his representative in the government 
of the whole diocese. It is made up of the vicar-general, 
the official chancellor, the promotor justitiae or diocesan 
attorney, the defender of the marriage bond, synodal 
judges and examiners, parish consultors, auditors, 
notaries, couriers and beadles. 

The official, who holds the first place after the vicar- 
general and must be chosen by the bishop (can. 1573, 
§ 1 ) , is a functionary distinct from the vicar-generaL 
His importance will become manifest later. The pro- 
motor iustitiae, the couriers and beadles will also be 

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392 ECCLESIASTICAL PERSONS 

dealt with infra. The latter two offices, being similar to 
that of ushers (cf. can. 1591), may be committed to 
laymen and one man may hold both. 



■ 



Can. 364 

§ 1. Nominatio eorum qui praedicta officia vel mu- 
ncra exercent, scripto consignetur, ad normam can. 

159- 

§2. Nominati vcro dcbent: 

i-° In manibus Episcopi iusiurandum praestare de 
rnunere fideliter exercendo, quavis personarum accep- 
tione posthabita; 

2. Negotia ad se spectantia sub auctoritate Epi- 
scopi tractare ad normam iuris ; 

3. Secretum servare intra fines ct secundum mo- 
dum a iure vel ab Episcopo determinatum. 

The appointment of all these officials must be made in 
writing, but before entering upon their respective offices 
they (1) are bound to swear in the hands of the bishop 
that they will discharge their duties faithfully and with- 
out human respect; (2) and when performing their duties, 
they must do so under the supervision of the bishop, ac- 
cording to the norms laid down in the following canons. 
Besides they are strictly bound to secrecy within the limits 
and to the extent set by law or by the bishop. 

The secret they are obliged to keep is called official; 
it attaches to their office and hence might also be styled 
with a legal term, " privileged knowledge," i. e., knowl- 
edge the manifestation of which cannot be legally exacted. 
The obligation arising from this secret is based upon the 
natural law, but its measure and extent may be deter- 
mined by positive norms, which are as broad as the mat- 



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CANON 365 393 

ter involved and as wide as the necessity of the office, 
which is subject to the law and the will of the superior. 
Therefore, if a higher or more stringent reason, e. g. t 
the public welfare or a superior command, should de- 
mand of these officials the revealing of a secret, they 
would have to obey. On the other hand, they are never 
allowed to reveal anything to persons not legally, or not 
at all, involved or interested, and even to parties inter- 
ested they cannot communicate anything which would be 
detrimental to another, unless they are legally called upon 
to do so by reason of their office. 



Can. 365 

Dc officiali, promotore iustitiae, defensore vinculi, 
iudicibus synodalibus, auditoribus, cursoribus et appa- 
ritoribus, serventur praescripta can. 1573-1593; de 
Vicario Generali, cancellario aliisque notariis, cxami- 
natoribus synodalibus et parochis consultoribus, prae- 
scripta canonum qui sequuntur. 



The special duties of these several officers are 
pointed out partly in the immediately following canons, 
partly in the fourth book on legal procedure (cc. 1573- 
1593). Here more particular attention is given to the 
important office of the vicar-general, 

ARTICLE I 

THE VICAR-GENERAL 

The historical development of this office proceeded by 
slow degrees, until it assumed its present status. Not 
all countries show the same process of evolution, and 
hence it is dangerous to generalize. The former office of 



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archdeacon, to some extent, resembles that of the vicar- 
general. In Rome as well as in other large cities, one of 
the deacons was called archdeacon, a title which is al- 
ready given to St. Lawrence. 1 The office was closely 
connected with temporal affairs. The archdeacon grew 
in importance as the chorepiscopus decreased in power. 
Since the IXth century there was more than one arch- 
deacon, especially in larger dioceses, and they gradually 
seem to have absorbed the powers of the archpriest, whose 
functions concentrated upon baptismal and other spirit- 
ual powers. The archdeacons often acted against the 
bishop's wishes, and consequently the bishops endeavored 
to restrict the archdeacons' aggrandizement of power. 
That their power was ordinary, without a mandate or 
delegation from the bishop, is nowhere stated in the 
Decretals of Gregory IX, although this has been as- 
serted. 2 The decretals* call him vicar of the bishop, 
attribute to him the supervision and correction of the 
clergy, care of the sacred vestments, the office of master 
of ceremonies, and the visitation of the diocese. But 
without a special mandate of the bishop archdeacons can- 
not appoint parish priests or pronounce excommunica- 
tion, although they may hear the quarrels of single indi- 
viduals. This is sufficient concerning the power given by 
the Gregorian Decretals to the archdeacon. Soon after- 
wards appears an officialis, who may be identified with the 
present vicar-general. In the Liber Sextus Innocent IV 
(a. d. 1250) laid down rules for this official. 4 His power 
is not, at least in its full extent, ordinary, otherwise pro- 
cedure and appointment to benefices would not be ex- 



1 Ltbrr Ponttfiealis, ed. Duchesne, rioned in e. 14, X, I, 31 as con- 
1886, I, 155. stituted for different rites and 

s Thus Sagrauller, K.~R., 1900, p. languages, but subject to the bishop. 






368. 4 Tit ij In 6* de officio vlcarii. 



a Cf. tit 33.— A Vicar is meo- 



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CANON 366 395 

cepted therefrom. The bishops meanwhile continued 
their opposition to the archdeacons by appointing offi- 
ciates foranei, or rural deans, who with the permission 
of the bishop exercised a certain jurisdiction in their 
districts, but were removable ad nutum. In England 
there arose a distinction between the vicar-general, to 
whom the administration or voluntary jurisdiction was 
entrusted, and the official, who had contentious or 
criminal jurisdiction. The Council of Trent 5 paid no 
attention to this distinction, but curtailed the power of 
the archdeacons, who became an appendage of the 
cathedral chapters with merely honorary rights, whilst 
the vicar-general became more important. Under the 
new Code the officialis of former times reappears, as will 
be seen in Book IV. 

Can. 366 

§ 1. Quoties rectum dioecesis regimen id exigat, 
constituendus est ab Episcopo Vicarius Generalis, qui 
ipsum potestate ordinaria in toto tcrritorio adiuvet 

§ 3. Vicarius Generalis libere ab Episcopo designa- 
tor, qui eum potest ad nutum removere. 

§3. Unus tantum constituatur, nisi vel rituum 
diversitas vel amplitude dioecesis aliud exigat; sed, 
Vicario Generali absente vel impedito, Episcopus alium 
constituere potest qui eius vices suppleat 

Whenever the right government of a diocese requires, 
the bishop shall appoint a vicar-general to aid him, with 
ordinary power, in the whole diocese. 



I Trid., S«m. 94, cc. 3, so; Seis. Btnefciariaj, MagontSaci, 1787, P. 
25, c. 14 'if rcf. ; concerning the I, lib. II, cc. 7 flF.; Hinschius, Sys- 
history cfr. Thomassinus, Vitus ct tern des Koth. KirchtnrtchU, II, 



Nova Disciflino circa Bncficia ct 183. 



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396 ECCLESIASTICAL PERSONS 

The vicar-general is freely designated by the bishop 
and may be removed by him at pleasure. 

Only one vicar-general may be appointed, unless a 
diversity of rites, or the size of the diocese, should re- 
quire more. If the vicar-general is absent or prevented, 
the bishop may temporarily appoint another priest in his 
place. 

This canon enjoins the bishop to choose a vicar-gen- 
eral under certain circumstances, namely, when this is 
necessary for the right government of the diocese. 
Hence the bishop is not absolutely, but only relatively 
obliged to appoint a vicar-general. The judgment of the 
necessity lies with the bishop himself. If gross neglect 
of episcopal duties or protracted absence should cause 
considerable damage to a diocese, the Holy See might 
force the bishop to accept either a vicar-general or apos- 
tolic administrator. 8 

The appointment of a vicar-general is one of the free 
and uncontested rights of the bishop, and in exercising 
it he is not bound by the consent or advice of his 
chapter or consultors, much less by insinuations or pres- 
sure on the part of the civil government, unless the latter 
is accorded definite privileges by a concordat. 

The bishop can exercise the right of appointing a vicar 
only after the papal nomination or provision has been 
received. 7 

The removal of a vicar-general depends entirely on the 
good pleasure of the bishop, who may take the office 
away, with or without reason, and without any formality, 
summary or solemn procedure. 

The number of vicars-general is limited to one, except 
in dioceses where diversity of rites or territorial extent 

«Cf. Werw, 7m* Dtcrtt, II. p. T Cf can. 334, I 3- 



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CANON 367 397 

make it advisable to have several. Innocent III decreed 
that a bishop should select several vicars for diverse rites 
and language-. 8 Such vicars resemble auxiliary bishops, 
who would be able to celebrate the sacred mysteries in the 
respective rite, whilst our Code speaks of vicars-general 
only and does not mention diversity of language. The 
second reason for having several vicars-general is " ampli- 
tudo dioeceseos." Amplitudo has the meaning of exten- 
sion as well as greatness or number of parishes and souls. 
On that score the metropolitans of most of our American 
archdioceses may safely appoint several vicars-general, 
who per concomitantiam may divide their labors accord- 
ing to linguistic denominations. If a bishop has two 
dioceses to govern, either as two sees with equal rights 
(aeque principaliter unitae), or one as his proper see and 
the other as administrator, he may appoint two vicars- 
general, 1. e, t one for each diocese, if this latter measure 
should be found more expedient or perhaps necessary for 
" right administration." 9 



Can. 367 

§ z. Vicarius Gene ralis sit sacerdos e clero saecu- 
lari, annos natus non minus triginta, in theologia et 
iure canonico doctor aut licentiatus vel saltern earum 
disciplinarum vere peritus, sana doctrina, probitate, 
prudentia ac rerum gerendarum experientia commen- 
datus. 

§2. Si dioecesis alicui religioni commissa fuerit, 
Vicarius Generalis potest esse eiusdem religionis 
alumnus. 

8 Cf. c. 14, X, I, 31, de officio U the other diocese would be very 
judicis ord. distant, the bishop would be obliged 



Bouix, Tractatu* d* Judicii* to appoint a vicar-general. 

Beck, 1855. t. I, p